Central Administrative Tribunal - Madras
Muthulakshmi vs M/O Railways on 24 November, 2023
1 OA No.310/00433/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00433/2023
Dated this 24th day of November, Two Thousand Twenty Three
CORAM :
HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER
Muthulakshmi,
D/o late T. Uthandan,
No.21/47, North Street,
N. Venkateshpuram,
Sattur Taluk,
Virudhunagar District. .. Applicant
Vs
By Advocate M/s R. Murugappan
1.Union of India
rep by the Divisional Railway Manager(DRM),
Southern Railway,
Madurai Railway Division,
Madurai.
2.The Divisional Personnel Officer,
Southern Railway,
Divisional Office(Personnel Branch),
Madurai Railway Division,
Madurai. .. Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No.310/00433/2023
ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"i) to call for the records relating to the impugned order vide order No.U/P/500/Sett/IV/T.U dated 03.01.2023 passed by the 2nd respondent and quash the same and directed the respondents to sanction the Secondary Family Pension to the applicant including the arrears of pension from her date of eligibility;
ii) Award the cost of the application;
iii) grant such other or further relief or reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and thus render justice."
2. The brief facts of the case are as follows:
The applicant's father T. Uthandan, who joined in the Respondent's office on 17.08.1974 as "Care Taker" and retired from service on 10.09.1999 as Sr. Care Taker and received all his pensionary benefits during his life time and died on 01.08.2007. After the death of the applicant's father her mother Mrs. U. Mariammal was receiving Family Pension from the respondents and died on 09.07.2015 leaving behind the applicant and four other legal heirs. The applicant was married to one Marimuthu @ Samuel on 24.05.1995, who is drunkard, harassed her under the influence of alcohol. Therefore without no other option, the applicant left from her matrimonial home and resided with her parents as dependant 3 OA No.310/00433/2023 until their death. Thereafter, the applicant stated to live alone in her parents' house till today. Further, the applicant filed Divorce case in HMOP No.153 of 2018, before the Sub-Court, Sivakasi in Virudhunagar District, from her husband and the same was allowed on 12.02.2019.
Furthermore, she has obtained Deserted Woman Certificate from the Tahsildar, Sattur, Virudhunagar District on 09.01.2020. The applicant had obtained customary divorce from her husband with mutual consent by orally as per the prevailing custom and usage of the society in the presence of the relative of both side and also elders of the village which was reduced in writing dated 02.01.2000. According to the applicant, most of her life time was spent with her parents and she depended upon them till their death. Now no one is available to take care of the applicant after the death of her parents who were pensioner and family pensioner of the respondents. The applicant made representations to the respondents particularly to the 2nd respondent to sanction of Secondary family pension to the applicant after enclosing all the documents. But the 2nd respondent rejected the applicant's claim by the Impugned Order dated 03.01.2023. Hence the present Original Application.
3. Heard the learned counsel for the applicant Mr. R. Murugappan and the learned counsel for the respondent Mr. Kishore Kumar, SPC and perused the pleadings and materials on record. 4 OA No.310/00433/2023
4. The learned counsel for the applicant contended that the applicant was married to one one Marimuthu @ Samuel on 24.05.1995, who is drunkard, unemployed and everyday harassed her under the influence of Alcohol. The applicant has left the matrimonial home within few years of her marriage. She has started to reside with her parents from 1996, till their death ie for more than 22 years. He further contended that the applicant had obtained customary divorce from her husband with mutual consent as per the prevailing custom and usage of the society in the presence of the relatives of both side and also the elders of the village which was reduced in writing.
5. The learned counsel for the applicant further submitted after the advice in order to avail the benefits of pension as divorced daughter, she has to obtain orders from the Competent Court. Thus, the applicant filed a Petition for divorce in HMOP No.153 of 2018 on the file of the Sub-court, Sivakasi, which was allowed on 12.02.2019 and the marriage between the applicant and her husband was dissolved. He further contended that the applicant has also got the Deserted Woman certificate from the Concerned Authority in which it is clearly mentioned that she is deserted for a period of 22 years. He further contended that the divorce agreement obtained by the applicant from her husband in the year 2000 was marked as Exhibit P- 2 in the HMOP No.153 of 2018. Therefore, he contended that the 5 OA No.310/00433/2023 applicant is entitled for the relief sought for and the impugned order is liable to be set aside and the OA is to be allowed.
6. The learned counsel for the applicant relied on the following decisions:
(i) Judgement dated 13.08.2019 of the Hon'ble Madras High Court in W.P. No.9460 of 2019 UOI rep. By General Manager S.Rly and Another Vs. S. Vijayalakshmi -Relevant Paras 8 & 9 of the said Judgment.
(ii) Judgement dated 03.04.2018 of the Hon'ble Bombay High Court in the case of Union of India Vs Usha Eknath Patil in WP No.6884 of 2016 -
Relevant Paras 19 to 22 of the said Judgement.
7. Per contra, the learned counsel for the Respondent vehemently opposed the submission of the applicant. He contended that the applicant had filed the divorce petition only after the demise of the parents of the applicant in the year 2018 and the competent court allowed the said petition and ex-parte decree granted on 12.02.2019. At that time, the applicant was a married daughter and her mother expired on 09.07.2015 and her father expired on 01.08.2007. The learned counsel further submitted that even in the divorce order, dated 12.02.2019, it is stated that the applicant was living separately from the year 2000 and hence she was not a dependent daughter of her parents during their life time.. 6 OA No.310/00433/2023
8. He further contended that the applicant has produced the divorce declaration submitted by her husband dated 02.01.2000 for the dissolution of marriage in the presence of relative of both side and elder of the village which is invalid one in the eyes of law unless it is obtained from the competent court. In this regard, the learned counsel for the respondents relied on the judgment dated 06.09.2010 in W.P.(MD) No.11614 of 2010. He further relied on the documents filed Annexure R-1 & R-2 and prayed for dismissal of the OA.
9. I have given my thoughtful consideration to the submission of both the parties and also gone through the decisions relied on by the respective parties.
10. I am totally convinced with the submission of the learned counsel for the applicant. He specifically drew to the attention of the Judgement of the Hon'ble Madras High Court in W.P. No.9460 of 2019 with regard to his contention that the applicant's claim for secondary family pension cannot be rejected on the ground that the divorce had come into existence only after the death of her parents. The relevant portions of the judgment are extracted as hereunder:
8. A perusal of the records would show that on 09.01.1997, there was an agreement between the 7 OA No.310/00433/2023 second respondent herein and her erstwhile husband to part ways which has been reduced into writing in an agreement dated 09.01.1997. It is also seen that from the date of her marriage coming to an end by mutual agreement, the second respondent was living with her father. This is evident from a perusal of the family card issued by the Civil Supplies and Consumer Protection Department (Ration Card).
The father has made an application on 04.02.2005 requesting the petitioners to include the name of his daughter in the place of his deceased wife for pension. The said request was then denied on the ground that the second respondent was over aged. It appears that thereafter there has been a revision in the Rules wherein the restriction of age with reference to the widowed/divorced daughters had been removed.
9. After the amendment, the father had renewed the request by his letter dated 14.2.200. This request has also been turned down by the petitioners stating that the daughter can apply only from the date on which her turn for family pension materializes provided she is not remarried/employed. In compliance of this direction, on the death of her father, the second respondent had made an application for granting family pension on 28.10.2013. The second respondent had also enclosed the agreement of divorce entered into between herself and her erstwhile husband. By letter dated 08.05.2014 the petitioners had requested her to submit an order from the Court. In view of the above direction, it appears that the second respondent had made an application for dissolution of her marriage dated 19.08.1996 in HMOP.No.80 of 2014 before the Sub Court Sivagangai. The Sub Court was also pleased to grant a decree of divorce. The agreement dated 09.1.1997 which has been entered into between the second respondent and her erstwhile husband has been marked as Ex.P3 and it was also referred to in the order for grant of divorce. When the said order was produced before the petitioners, the impugned order dated 18.11.2016/07.12.2016 was passed 8 OA No.310/00433/2023 stating that since the divorce had come into existence after the death of the father; she was not entitled to the family pension. As stated supra even during the life time of the father, the second respondent was separated from her husband and was dependant on the deceased employee right from the year 1997. The second respondent has been living apart from her husband ever since 1997 and ultimately on the directions of the petitioners she had made an application for divorce and the court taking note of the fact that an agreement was entered into between the second respondent and her husband on 09.01.1997 (which was marked as Ex.P3 in the proceedings) granted her divorce. Therefore as rightly held by the Tribunal, it is clear that the second respondent is entitled to the family pension.
11. In the decision of the Hon'ble High Court of Bombay relied on by the learned counsel for the applicant it was held that though customary divorce may not be legally recognised, when daughter was not residing with her husband and therefore she was a member of family of her deceased father. The relevant portions of the judgment are extracted hereunder:
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 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 9 OA No.310/00433/2023 11/9/2013 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 cannot 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 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 there under.
12. It is very clear that the above said Judgments are squarely covered the facts of the present case of the applicant. Though the applicant obtained the divorce from the Competent Court only in the year 2019, the applicant has already obtained customary mutual consent divorce was given by her husband in writing in the presence of the elders of both the parties and before elders of villagers which also forms part of the exhibits in the HMOP No.153 of 2018. Likewise, though the applicant had obtained the divorce after the demise of the parents, the same cannot be a 10 OA No.310/00433/2023 ground to reject her claim as per the decisions of the Hon'ble High Court of Madras and Hon'ble Bombay High Court cited supra.
13. In the above circumstances, the impugned order dated 03.01.2023 is set aside, The respondents are directed to consider the Divorce order passed by the Competent Court in HMOP No.153 of 2018 together with Exhibit P-2 of the said Divorce Order in respect of the applicant and the Judgments cited supra and to pass an appropriate order with regard to the claim of the applicant for secondary family pension within a period of 3 months from the date of receipt of this order.
14. With the above direction, the OA is disposed of. No order as to costs.
(M. SWAMINATHAN) MEMBER(J) 24.11.2023 mas