Central Administrative Tribunal - Delhi
Radha Giri vs Railway on 30 January, 2025
1
O.A. No. 66/2024
Item No. 18 (C-3)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 66/2024
Reserved on: 23.12.2024
Pronounced on: 30.01.2025
Hon'ble Mr. Manish Garg, Member (J)
1. Smt. Radha Giri, aged 29 years,
Wd/o Late Sh. Narender Kumar,
r/o Gali No.4. Krishna Vihar,
Mansarover Park, Near Anand Hospital,
Ghaziabad (UP). - 201002.
2. Master Medhansh Bharti, aged 8 years (Minor),
s/o Late Sh. Narender Kumar,
r/o Gali No.4, Krishna Vihar,
Mansarover Park, Near Anand Hospital,
Ghaziabad (UP). -201002,
Through mother Smt. Radhika Giri.
3. Master Monish Bharti, aged 5 years (Minor),
s/o Late Sh. Narender Kumar,
r/o Gali No.4, Krishna Vihar,
Mansarover Park, Near Anand Hospital,
Ghaziabad (UP). -201002,
Through mother Smt. Rahika Giri.
...Applicants
(By Advocate: Mr. Yogesh Sharma)
VERSUS
1. Union of India,
through the General Manger,
Northern Railway, Baroda House, New Delhi. -01
2. The Divisional Railway Manager.
Northern Railway. Delhi Division.
State Entry Road, New Delhi- 6
3. The Assistant Personal Officer/Settlement,
DRM's office, Northern Railway,
Delhi Division, State Entry Road,New Delhi-6.
... Respondents
(By Advocate: Mr. Sanjeev Yadav)
2
O.A. No. 66/2024
Item No. 18 (C-3)
ORDER
By way of the present O.A. filed under Section - 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following reliefs:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 5.4.2023 (Annex.A/1)m declaring to the effect that the whole action of the respondents not releasing the family pension and other terminal benefits to the applicants is illegal, arbitrary and against the law of the land and consequently, pass an order directing the respondents to grant the family pension, DCRG, PF amount and other terminal benefits with interest to the applicants inrespect of Late sh. Narender Kumar at an early date with all the consequential benefits including payment of arrears of pension with interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. Learned counsel for the applicants submitted that the applicant No. 1 is a legally wedded widow and applicant Nos. 2 and 3 are the minor sons of Late Narender Kumar, who died in harness on 20.12.2022 while working as Technician -III Oil Engine under SSE/PC/STB/New Delhi in Northern Railway, Delhi Division.
2.1. Learned counsel submitted that the applicant No. 1 is seeking release of family pension in her favour. He added that applicant's husband who was in service with the respondents unfortunately committed suicide on 20.12.2022 and, thereafter, the applicant No. 1 approached 3 O.A. No. 66/2024 Item No. 18 (C-3) the respondents to release the family pension in her favour. However, vide communication dated 05.04.2023, the respondents have stated that there is a criminal case pending against her relating to the death of her husband and because of this they are unable to process family pension in her favour.
2.2. Learned counsel for the applicants further submitted that this O.A. has been preferred against the order dated 05.04.2023 and against the illegal action of the respondents by which they have not granted the family pension, DCRG, GPF amount and other dues to the applicants.
3. Learned counsel for the applicants contended that the criminal case pending against the applicant No. 1 is based upon a false complaint, which has been made by her mother in law that because of the applicant No. 1, her son, i..e., Late Narender Kumar has committed suicide. Learned counsel for the applicants added that the present case is not a case of murder or abetting the murder. 3.1. Learned counsel for the applicants further contended that there is no such rule or provision in the pension rules that if some criminal complaint is pending against the 4 O.A. No. 66/2024 Item No. 18 (C-3) widow, she is not entitled for family pension and other terminal benefits after the death of her husband and moreover, as per Rule 75(8) of the Railway Service (Pension) Rules, 1993, the minor children are entitled for the family pension and terminal benefits as there is nothing pending against them.
3.2. Highlighting the Hindu Minority and Guardian Act, 1956, learned counsel for the applicants submitted that as per the said Act, the mother is the natural Guardian of a minor child and, therefore, in the present case, the applicant No. 1 is a natural guardian and there is no dispute to the fact that applicant No. 1 is the mother of applicant Nos. 2 and 3, who are living with her and she is bearing all their expenditures.
3.3. Placing reliance upon the decision rendered in Saraswathibai Shripad v. shripad Vasanji, ILR 1941 Bom 455, Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, learned counsel for the applicants argued that it is not in dispute that the custody of the minor children has to be with the mother, who is otherwise also a natural guardian of minor children. 5 O.A. No. 66/2024 Item No. 18 (C-3)
4. Opposing the grant of relief, learned counsel for the respondents submitted that the applicant No. 1 is the widow of deceased Narender Kumar, who was working as OEPF-II under SSE/PC/STB and has committed suicide by hanging himself with a ceiling fan on 20.12.2022. The deceased employee Late Narender Kumar wrote a suicide note wherein he accused his wife Smt. Radha Giri (applicant No. 1) of her illicit relations. Earlier, the applicant No. 1 had filed an FIR No 0814 dated 15.12.2022 under IPC Act 1860, section 498-A, 307. 323. & 34 in police station Anoop Garh, district, Ganganagar, Rajasthan, against her husband.
4.1 Learned counsel for the respondents further submitted that Smt. Sheela Devi mother of deceased employee Late Narender Kumar also filed an FIR No. 0385 under IPC 1860, section 154 dated 24.12.2022, (after death of the employee), against her daughter-in-law namely Smt. Radha Giri (applicant No. 1) in police station Badalpur, district, Central Commissionarate Gautam Budh Nagar, UP, under IPC Act 1860 Section 306. Thereafter, the applicant No. 1 was arrested by the UP police from her residence. At present, the applicant No. 1 has been released on bail under IPC section 437 (3) as per order of session judge in 6 O.A. No. 66/2024 Item No. 18 (C-3) the court of Gautam Budh Nagar vide ID No. UP 6527 dated 30.01.2023. Learned counsel for the respondents added that the applicant No. 1, namely Smt. Radha Giri, is an accused in FIR Case bearing No. 385/2022 U/s 306 IPC with PS Badalpur, Gautam Budh Nagar and as per statement of Smt. Sheela Devi, mother of the deceased Narender Kumar, as contained in the FIR, the applicant No. 1 is the main accused who abetted Late Narender Kumar to commit suicide with the help of her associates. A bare perusal of this FIR makes it abundantly clear that Smt. Radha Giri (applicant No. 1.) is the main accused who provoked her husband to commit suicide, she abetted him to take this extreme step. The matter is still pending before competent Court.
4.2. Highlighting Section-25 of the Hindu Succession Act, 1956 learned counsel for the respondents submitted that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. Adding to his submissions, learned counsel for the respondents stated that a bare perusal of Section 25 of Hindu Succession Act, 1956 makes 7 O.A. No. 66/2024 Item No. 18 (C-3) it clear that Smt. Radha Giri (applicant No. 1) cannot succeed to the Estate of the deceased; she cannot succeed the benefits arising out of the employment of the deceased. 4.3 Learned counsel for the respondents further argued that the claim of Smt. Radha Giri (applicant No. 1) is not maintainable as she is not entitled for succeeding to the Estate of her husband for aforesaid reason and disqualification as provided under Section- 25 of the Hindu Succession Act, 1956. Furthermore the Rule14(i) of Railways Pension Rules also prohibits the grant of family pension to such a person who is charged with the offence of murdering the railway servant or abetting the commission of such an offence.
4.4. Learned counsel for the respondents also submitted that the children of the deceased Narender Kumar have every right to succeed their deceased Father and this Tribunal may appoint a WLI (Welfare Inspector Railways) to look after the children or this Tribunal may also appoint a third party to look after the welfare of children and their education. However, he added that this Tribunal should not provide the guardianship of children to their maternal 8 O.A. No. 66/2024 Item No. 18 (C-3) family as the applicant No. 1 herself is accused for abetting her husband to commit suicide.
5. Heard learned counsel for the respective parties and perused the pleadings available on record as well as the written synopsis filed on behalf of the parties.
6. ANALYSIS :
6.1. This Tribunal does not have a provision for appointing a next friend, but the Civil Procedure Code (CPC) does have a provision for appointing a next friend in a suit involving a minor or a person of unsound mind.
6.2. We may refer to Section - 22 of the Administrative Tribunals Act, 1985, which reads as under:
"22. Procedure and powers of Tribunals -
(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.
(2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and [after hearing such oral arguments as may be advanced].
(3) A Tribunal shall have, for the purposes of [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of 9 O.A. No. 66/2024 Item No. 18 (C-3) Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence of affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex- parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex-parte ; and
(i) any other matter which may be prescribed by the Central Government."
6.3. The definition of "Service Matters" and "Service Rules"
as contained in Section 3 of the Administrative Tribunals Act, 1985, read as under:
(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects-
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;10 O.A. No. 66/2024
Item No. 18 (C-3)
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
(r) "service rules" as to redressal of grievances", in relation to any matter, means the rules, regulations, orders or other instruments or arrangements as in force for the time being with respect to redressal, otherwise than under this Act, of any grievances in relation to such matters;"
6.4. In terms of Section 3 (q) (i) read with Section 3 (r), it is within the jurisdictional competence of this Tribunal to adjudicate upon the service matters in relation to a person's grievances relating to the conditions of service under relevant Rules. The decision to adjudicate upon remuneration (including allowances), pension and other retirement benefits falls within the ambit and scope of Section 3(q) (i) and this Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.
6.5. In the present matter, the issue for release of pension to two minors is involved. There is no denial to the fact by the respondents that two minors are entitled to the pension on behalf of their late father. The only issue which emerges for consideration is that how to disburse the pension and who should be the next friend, particularly when, there is an on-going dispute as regards the circumstances under 11 O.A. No. 66/2024 Item No. 18 (C-3) which the deceased Narender Kumar (father of minor child) has expired and it has been alleged that mother of the minor child in involved in the said crime which is put on trial. In other words, how the ensure the welfare of minor child is the paramount issue for consideration in the present O.A. 6.6. The Pension Rules do not prohibit the grant of family pension/death gratuity to the family of a Government servant who commits suicide.[G.I., M.F., Letter No. F. 29 (2)-E. V/56, dated the 11th September, 1956.] 6.7. Having regard to the reliance placed on the Railway Service Pension Rules, 1993 by the learned counsel for both the parties, this Tribunal is of the view that the provisions of Railway Service Pension Rules, 1993 are akin to Family Pension Rules, 1964. The Family Pension Rules, 1964 are exhaustive and self contained code for purpose of adjudication of the claim of family pension and, therefore, a reference can be drawn for adjudication of the present subject matter.
6.8. Certain Family Pension Rules of 1964, which are guiding factor and relevant for adjudication of the present O.A., reads as under:
12O.A. No. 66/2024
Item No. 18 (C-3) "Rule 50 (2) (6) For the purposes of this rule and Rule 51,52 and 53, `family', in relation to a Government servant, means -
(i) wife or wives 7[including judicially separated wife or wives] in the case of a male Government servant,
(ii) husband, 7[including judicially separated husband] in the case of a female Government servant,
(iii) sons including stepsons and adopted sons,
(iv) unmarried daughters including stepdaughters and adopted daughters,
(v) widowed daughters including stepdaughters and adopted daughters,
(vi) father, including adoptive parents in the case of individuals whose personal law permits adoption,
(vii) mother, including adoptive parents in the case of individuals whose personal law permits adoption,
(viii) brothers below the age of eighteen years including stepbrothers,
(ix) unmarried sisters and widowed sisters including stepsisters,
(x) married daughters, and
(xi) children of a pre-deceased son.
Rule 50 (4) Where gratuity is granted under Rule 50 to a minor member of the family of the deceased Government servant, it shall be payable to the guardian on behalf of the minor.
Rule 51 (3) Payment of minor's share of death/retirement gratuity to guardian. - 1. Payment of the minor(s)' share of death/retirement gratuity is to be made to the natural guardian of the minor(s), and in the absence of a natural guardian, to the person who furnishes a guardianship certificate.
2. In a case where payment of the minor(s)' share of death/retirement gratuity is to be made to the natural/legal guardian, in order to issue the necessary payment authority in his/her favour, the Accounts Officer concerned must know this fact, as well as the name of the natural/legal guardian. If the above information is not given in the sanction letter, the Accounts Officer has to make enquiries on this point from the sanctioning authority, resulting in avoidable delay in the payment of death/retirement gratuity. To obviate such delays, the Ministry of Home Affairs, etc., are requested to ensure that in future in all cases of this nature the aforesaid particulars are given in the sanction letter itself.
13O.A. No. 66/2024 Item No. 18 (C-3)
3. The legal position as to whom the share of a minor in the capacity of minor's natural/legal guardian would be payable is explained as under -
(1) Where no valid nomination subsists :
(a) When a share is payable to minor sons or minor unmarried daughters, it should be paid to the surviving parent except in the case when the surviving parent happens to be a Muslim lady.
Where, however, there is no surviving parent, or the surviving parent is a Muslim lady, payment will have to be made to the person producing the guardianship certificate.
(b) When a share is payable to widowed minor daughter(s), production of a guardianship certificate would be necessary.
(c) If in a rare case the wife herself happens to be a minor, the death/retirement gratuity payable to her shall be paid to the person producing the guardianship certificate.
(d) When the death/retirement gratuity becomes payable to a minor brother or a minor unmarried sister, the payment should be made to the father or, in his absence the mother of the beneficiary except in a case where the mother happens to be a Muslim lady. In this case too, if there is no surviving parent or the surviving parent happens to be a Muslim lady, the payment will have to be made to the person producing the guardianship certificate. If any share is payable to a widowed minor sister the production of guardianship certificate would be necessary.
(2) Where a valid nomination subsists :
(a) Where the nomination is in respect of one or more of the members of the family, the position stated against para. 3 (1) would apply.
(b) Where there is no family, the nomination in favour of an illegitimate child or married sister would also be valid. The position would, therefore, be as follows :-
(i) If the nominee is an illegitimate child, the share will be payable to the mother, and in her absence, the production of a guardianship certificate would be necessary.
(ii) If the share is payable to a married minor girl, the share will be payable to the husband.
[G.I., M.F., O.M. No. F. 24 (8)-E. V (A)/59, dated the 20th October, 1959.] 14 O.A. No. 66/2024 Item No. 18 (C-3) NOTE. - A surviving stepmother is not a natural guardian of the minor child, and is not, therefore, covered by the term `surviving parent' used in para. 3 (1) (a) above. [G.I., M.F., O.M. No. F. 24 (8)-E. V/59, dated the 1st September, 1960.] 51 (4) Special relaxation for payment of minor's share without guardianship certificate, up to the extent of Rs. 10,000. - 1. Decision No. (3) lays down that the payment of a minor's share of death/retirement gratuity is to be made to the person producing a guardianship certificate when there is no surviving parent or the surviving parent is a Muslim lady. It has been represented that in many cases, the production of guardianship certificate causes great inconvenience and entails delays in the settlement of the claims.
2. It has been decided in modification of the above decision that payment of death/retirement gratuity to the extent of Rs. 10,000 (or the first Rs. 10,000 where the amount payable exceeds Rs. 10,000) in favour of a minor may be made to his/her guardian, in the absence of a natural guardian, without the production of a formal guardianship certificate but subject to the production of an indemnity bond with suitable sureties to the satisfaction of the sanctioning authority. The balance in excess of Rs. 10,000, if any, would become payable on the production of a certificate of guardianship.
3. It is essential, however, that there should be adequate prima facie grounds for making payment as in paragraph 2 above, to the person claiming it. Such ground can exist only if he is shown by a sworn declaration to be a de facto guardian and his bona fides have been ascertained. Even if a guardian has not yet been appointed by the Court, if the minor and his property are in the custody of some person, such person is in law a de facto guardian. The authorities making the payment should, therefore, require the person who comes forward to claim payment on behalf of the minor, to satisfy them by an affidavit that he is in charge of the property of the minor and is looking after it or that, if the minor has no property other than the gratuity, the minor is in his custody and care. The affidavit so to be produced is in addition to the indemnity bond with suitable sureties.
4. The indemnity bond which is to be required to be produced by a de facto guardian of minor(s) for payment of death/retirement gratuity to the extent of Rs. 10,000 should be executed in the form appended below.
5. It has been decided that the stamp duty payable on the indemnity bond will be borne by the Government. The indemnity bond should, therefore, be executed on any durable plain paper.
15O.A. No. 66/2024 Item No. 18 (C-3)
6. The indemnity bond should be signed by the obligor and the surety/sureties or their respective attorneys appointed by power(s) of attorney. The indemnity bond on behalf of the President should be accepted by an officer duly authorised under Article 209 (1) of the Constitution. [G.I., M.F's., O.M. No. 10 (3)-E. V (A)/61, dated the 29th June, 1971, O.M. No. F. 10 (6)-E. V (A)/65, dated the 11th February, 1966 and Dept. of P. & P.W's, O.M. No. 7/9/89-P. & P.W. (D), dated the 5th July, 1989.]"
6.9. The prescribed format of Indemnity Bond is reproduced as under:
"KNOW ALL MEN by these presents that we
(a)...............................(b)...................................the widow/son/brother, etc., of (c).........................deceased, resident of ....................................of .......................... and ......................
son/wife/daughter of .................. resident of ............................. the sureties for and on behalf of the Obligor (hereinafter called "the Sureties") are held firmly bound to the President of India (hereinafter called " the Government" ) in tthe sum of Rs........................ (Rupees...........................only) well and truly to be paid to the Government on demand and without a demur for which payment we bind ourselves and our respective heirs, executors, administrators, legal representatives, successors and assigns by these presents. Signed this .................................day of ..............................two thousand and ............................................... WHEREAS (c)..........................was at the time of his death in the employment of the Government/receiving a pension at the rate of Rs.......................(Rupees..............................only) per month from the Government.
AND WHEREAS the said (c).....................died on the .....................day of ..................... 20..... and there was due to him at the time of his death the sum of Rs.......................(Rupees .................................... only) for and towards share of his minor son/daughter in the death/retirement gratuity. AND WHEREAS the Obligor claims to be entitled to the said sum as de facto guardian of the minor son/daughter of the said
(c).......................but has not obtained till the date of these presents the certificate of guardianship from any competent Court of Law in respect of the said minor(s).
AND WHEREAS the Obligor has satisfied the
(e).............................that he/she is entitled to the aforesaid sum and that it would cause undue delay and hardship if the Obligor be required to produce the certificate of guardianship from the 16 O.A. No. 66/2024 Item No. 18 (C-3) competent Court of Law before payment to him of the said sum of Rs................................
AND WHEREAS the Government has no objection to the payment of the said sum to the Obligor but under Government Rules and Orders, it is necessary for the Obligor to first execute a bond with one surety/two sureties to indemnify the Government against all claims to the amount so due as aforesaid to the said (c).....................before the said sum can be paid to the Obligor.
AND WHEREAS the Obligor and at his/her request the surety/sureties have agreed to execute the bond in the terms and manner hereinafter contained.
NOW THE CONDITION OF THIS BOND is such that if after payment has been made to the Obligor, the Obligor and/or the surety/sureties shall in the event of a claim being made by any other person against the Government with respect to the aforesaid sum of Rs. _______ refund to the Government the said sum of Rs.............................and shall otherwise indemnify and keep the Government harmless and indemnified against and from all liabilities in respect of the aforesaid sum and all costs incurred in consequence of the claim thereto THEN the above written bond or obligation shall be void and of no effect but otherwise it shall remain in full force, effect and virtue.
AND THESE PRESENTS ALSO WITNESS that the liability of the sureties hereunder shall not be impaired or discharged by reason of time being granted by or any forbearance act or omission of the Government whether with or without the knowledge or consent of the surety/sureties in respect of or in relation to the obligations or conditions to be performed or discharged by the Obligor or by any other method or thing whatsoever which under the law relating to sureties, shall but for this provision have the effect of so relating the surety/sureties from such liability nor shall it be necessary for the Government to sue the Obligor before suing the surety/sureties or either of them for the amount due hereunder, and the Government agrees to bear the stamp duty, if any, chargeable on these presents. IN WITNESS WHEREOF the Obligor and the surety/sureties hereto have set and subscribed their respective hands hereunto on the day, month and year above written.
Signed by the abovenamed `Obligor' in the presence of
1. ......................................................
2. ...................................................... Signed by the abovenamed `Surety/Sureties' 17 O.A. No. 66/2024 Item No. 18 (C-3)
1. ......................................................
2. ...................................................... Accepted for and on behalf of the President of India by .......................................................................................................... .................................................................................... [Name and designation of the Officer directed or authorised, in pursuance of Article 299 (1) of the Constitution, to accept the bond for and on behalf of the President] in the presence of .......................................................................................................... ................................................................................... (Name and designation of witness) NOTE (a) Full name of the claimant referred to as the
1. - `Obligor'.
(b) State relationship of the Obligor to the deceased.
(c) Name of the deceased Government Officer.
(d) Full name or names of the sureties with name or names of the father(s)/husband(s) and place of residence.
(e) Designation of the officer responsible for payment. NOTE The Obligor as well as the sureties should have II. - attained majority so that the bond may have legal effect or force.
6.10. The landmark judgment in Githa Hariharan v. Reserve Bank of India AIR 1999 SCC 1149 revolutionized the interpretation of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, emphasizing that natural guardianship should be determined based on the capability and genuine interest of the parent in the child's welfare, rather than gender. It was observed as under :-
"18. It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means a guardian 18 O.A. No. 66/2024 Item No. 18 (C-3) mentioned in section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother's right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother's guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of the Constitution.
19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after' appearing in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had hav ing due reference to the contextual facts.
20. The contextual facts in the decision noticed above, depict that since the father was not taking any interest in the minor and it was as good as if he was non-existing so far as the minor was concerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and correct interpretation of the word `after' or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956 - it was decided upon the facts of the matter in issue. The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does not lend any assistance in the facts of the matter under consideration excepting however that welfare concept had its due recognition.19 O.A. No. 66/2024
Item No. 18 (C-3)
21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and Another (1993 (4) SCC 38) wherein the earlier decision in Gajre's case was noted but in our view Panni Lal's case does not lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor.
22. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly more greater detail. The word `guardian' and the meaning attributed to it by the legislature under section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as "a person having the care of the person of a minor or his property or of both his person and property...." It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word `guardian' both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor has to be in the custody of the person who can sub-serve his welfare in the best possible way - the interest of the child being paramount consideration.
23. The expression `natural guardian' has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word `guardian' in the definition section means and implies both the parents, the same meaning ought to be 20 O.A. No. 66/2024 Item No. 18 (C-3) attributed to the word appearing in section 6(a) and in that perspective mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent.Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression `after' therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.
24. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word `after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word `after' shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to the words used.
25. In our opinion the word `after' shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after' does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after' as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.
26. In that view of the matter question of ascribing the literal meaning to the word `after' in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, 21 O.A. No. 66/2024 Item No. 18 (C-3) since any other interpretation would render the statute void and which situation in our view ought to be avoided.
27. In view of the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.
28. Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith."
6.11. In a recent decision, titled Akella Lalitha vs Konda Hanumantha Rao, Civil Appeal Nos. 6325-6326 OFf2015 decided on 28 July, 2022, the Apex Court observed as under :-
"10. After the demise of her first husband, being the only natural guardian of the child we fail to see how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child. A surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular 1 MANU/SC/0117/1999 environment. Homogeneity of surname emerges as a mode to create, sustain and display 'family'.
11. The direction of the High Court to include the name of the Appellant's husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child. A name is important as a child derives his identity from it and a difference in name from his family would act as a constant reminder of the factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents. We, therefore, see nothing unusual in Appellant mother, upon remarriage having given the child the surname of 22 O.A. No. 66/2024 Item No. 18 (C-3) her husband or even giving the child in adoption to her husband.
12. While an adoption deed is not necessary to effect adoption and the same can be done even through established customs, in the present case the Appellant submits that on 12th July, 2019, during the pendency of the present petition, the husband of the Appellant/ step father of the child adopted the child by way of Registered adoption deed. Section 12 of the Hindu Adoption & Maintenance Act, 1956 provides that " An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family."
13. According to the Encyclopedia of Religion and Ethics-
"Adoption indicates the transfer of a child from old kinsmen to the new. The child ceases to be a member of the family to which he belongs by birth. The child loses all rights and is deprived of all duties concerning his natural parents and kinsmen. In the new family, the child is like the natural-born child with all the rights and liabilities of a native-born member." Therefore, when such child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter.
14. While the main object of adoption in the past has been to secure the performance of one's funeral rights and to preserve the continuance of one's lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family . Therefore, in light of the above observations, the first issue is settled in favour of the appellant.
Issue II
15. Coming to address the second issue, while this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/ son of respondents. It is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.
16. In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar2, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:-
23O.A. No. 66/2024
Item No. 18 (C-3) "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." 2 AIR 1953 SC 235
17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors.3 held:
"Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."
18. In this case while directing for change of surname of the child, the High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground.
19. Before parting with this subject, to obviate any uncertainty it is reiterated that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that child's interest is the primary consideration and it outweighs all other considerations. With the above observations the directions of the High Court so far as the surname of the child is concerned are set aside.
20. As a consequence, the appeals stand allowed in part." 6.12. There is an embargo under Rule 51-A of Family Pension Rules, 1964, which debars a person from receiving gratuity when he/she is charged with the offence of murdering the Government servant or for abetting in the commission of such an offence. His/her claim to receive his/her share of gratuity shall remain suspended till the conclusion of the criminal proceedings instituted against him/her. However, the said embargo is confined to 24 O.A. No. 66/2024 Item No. 18 (C-3) payment of gratuity and cannot be applied to disbursement of pension.
6.13. In terms of Sub-Rule (6) (i) of Rule 54 of Family Pension Rules, 1964, the family pension shall be initially payable to the minor children (mentioned in clause (ii) or clause (iii) of the sub-rule) in the order set out in clause (iii) of sub-rule (8) of the rule until the last child attains the age of twenty-five and the younger of them will not be eligible for family pension unless the elder next above him/her has become ineligible for the grant of family pension. 6.14. In the present case the welfare of minor children is the issue of paramount consideration. There is no guardianship certificate at this stage, therefore, Rule 51 sub-Rule (4), i.e., Special relaxation for payment of minor's share without guardianship certificate, up to the extent of Rs. 10,000/- ought to be followed. The production of guardianship certificate may cause great inconvenience and entail delay in the settlement of the claims, therefore, it is imperative that without the production of a formal guardianship certificate, subject to the production of an indemnity bond with suitable sureties to the satisfaction of the sanctioning authority, the payment of minor's share be done. The balance in excess of 25 O.A. No. 66/2024 Item No. 18 (C-3) Rs. 10,000, if any, would become payable on the production of a certificate of guardianship. If no guardianship certificate is produced, except to the extent of Rs. 10,000 per month, the arrears of family pension shall be paid to the minor only after he/she attains the age of 18 years. The disbursement of pension shall be made in consonance with Rule 54 sub-Rule (8) (iii) of Family Pension, 1964, i.e, family pension to the children shall be payable in the order of their birth and the younger of them will not be eligible for family pension unless the elder next above him/her has become ineligible for the grant of family pension.
7. CONCLUSION :
7.1. In view of the above settled preposition of law laid down by the Apex Court in Akella Lalitha vs Konda HanumanthaRa (supra) following dicta of Githa Hariharan (supra) there is no bar that mother of minor child cannot be released pension to the extent of Rs. 10,000/- per month, subject to furnishing the indemnity till she obtains the guardianship certificate or disposal of criminal case against her, which-ever is earlier. The Guardianship Court shall not be precluded from imposing such reasonable conditions which are in the interest and welfare of minor 26 O.A. No. 66/2024 Item No. 18 (C-3) children as it deems fit and proper in facts and circumstances of the said case, if so filed. Till such time, a saving bank account in a nationalized bank shall be opened in the name of elder minor child under de facto guardianship and payment of pension shall be made by disbursing authorities directly in the said account to the extent of Rs. 10,000/- per month which shall be utilized for the welfare of the minor children. The balance of pension payable shall also be disbursed in the said saving account, however, same shall be kept by the bank in a separate recurring deposit account, the maturity amount with accrued interest shall be released only upon conclusion of criminal trial subject to obtaining guardianship certificate or attaining the age of 18 years of minor child, which-ever is earlier.
7.2. This order shall be complied with by the parties within two months from date of receipt of the certified copy of this order.
7.3. The O.A. is disposed of in the aforesaid terms. All pending applications, if any, shall also stand disposed of. No Costs.
(Manish Garg) Member (J) /as/