Kerala High Court
Radhamony Amma vs State Of Kerala on 30 March, 2001
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT G. Sasidharan, J.
1. The claim of a widow for family pension was declined by saying that it is not possible to grant family pension without production of a certificate issued by a judicial officer stating that the marriage between the petitioner and the Government employee had not been dissolved. No judicial officer will issue a certificate stating that a marriage has not been dissolved and in effect the family pension to the widow stands denied. The appellant filed O.P. No. 11312/97 seeking direction to the respondents to grant and disburse family pension as permissible under law.
2. Learned Single Judge disposed of the Original Petition observing that the Government is bound to disburse the amount only to the children of the Government employee who had been nominated by him while in service. The learned Single Judge also observed that the nominees will hold the amount in trust for the other legal heirs also the proceedings and the remedy open to the parties is to approach a civil court. The finding of the learned Single Judge that the Government is bound to disburse the amount due towards family pension only to the nominees is challenged in this appeal. The observation by the learned Single Judge that the remedy available to the petitioner is in a civil court is also assailed.
3. Claim of the appellant is that she is the widow of Sri. P.P. Sankarankutty who was employed in the Agricultural Department. Admittedly, Sankarankutty married the petitioner in the year 1958 and three children including a daughter were born to them. The case of the appellant is that the relationship between the appellant and her husband became strained because the husband became alcoholic. The appellant would allege that by coercion the appellant was made to put her signature in a document, dated 14th October, 1983 described as a divorce deed and was registered as document No. 930 of 1983 in the Sub Registrar's Office, Wandoor. Apart from the execution of such a document, there was no legal divorce between the appellant and her husband. Ext. P1 is the copy of the document which is stated to be a deed of divorce. The husband of the petitioner retired from service on 30th June 1993 and he was killed in a motor accident on 22nd November 1994. Ext. P2 is a legal heirship certificate issued by the Tahsildar showing that the appellant and her three children are the legal heirs of the deceased Sankarankutty.
4. Appellant gave an application before the fifth respondent for granting family pension to her as the widow of deceased Sankarankutty. Then Ext. P3 letter was sent to the appellant from the Office of the Principal Agricultural Officer, Malappuram stating that as per the records in Wandoor Sub Registrar's Office it was found that the marriage of the appellant with Sankarankutty was dissolved and that two children of Sankarankutty were shown in the pension book as the nominees eligible to get family pension. The appellant was also asked to explain about the above matter. Ext. P4 representation was given by the appellant. Thereafter, Ext. P7 letter was received by the appellant in which it is stated that family pension cannot be granted to her till a certificate issued by a judicial officer stating that the marriage had not been dissolved is produced.
5. Sub-rr. 1 to 13 of R. 90 of Part III K.S.R. deal with granting of family pension under the liberalised family pension scheme. Sub-r.6 of the above rule says what is meant by family. The relatives of the employee who will come within the definition of family are mentioned in the above sub-rule. Note 1 to the above sub-rule says that if there are no surviving members of the family mentioned in items (a) to (e), Government may sanction family pension to the members referred to in items (f) and (g) subject to the conditions prescribed in sub-r.6A. Contributory family pension will be admissible to parents (father/mother) of the deceased Government Employee if they were solely dependant on the deceased for maintenance and they have no other source of income or support for maintenance. Even in cases where parents have an independent source of income of less than Rs. 4,800 per annum and they partly dependent on the deceased for maintenance and there are other extenuating circumstances, they will be entitled to get family pension subject to the conditions mentioned in R.6A(1). In sub-r.6 of R.90 wife is mentioned under clause (a) in the case of a male employee and husband is mentioned under clause (b) in the case of a female employee. It is under clause (c) mentioned is made about sons. Unmarried daughters are mentioned under clause (d). In this case Sri. Sankarankutty while in service gave the name of his two children as the persons who are entitled to get family pension.
6. The question which arises for consideration is whether a government employee can nominate anybody other than those mentioned in the rules as persons eligible to get family pension. Sub-r.7 of R.90 says that contributory family pension will be admissible in the case of a widow/widower has no another husband/wife living at the time of death of the employee. In the case of a son, he is entitled to get contributory family pension until he attains the age of 25 years or till he starts earning his livelihood, whichever is earlier. In the case of an unmarried daughter, she is entitled to get family pension until she attains the age of 25 years of marriage or starts earning her livelihood, whichever is earlier. Kerala Service Rules says who are entitled to get family pension.
7. Sub-r.13 of R.90 provides that all non-gazetted employees entitled to the benefit of the rules shall be required to furnish a statement of details of their family in Form 5A as defined in sub-r.6. A Government employee is also expected to keep the statement in Form 5A up-to-date by making additions to and alterations in the statement. All gazetted employees are also expected to furnish the details of their family in Form 5A to the Audit Officer and to keep those particulars up-to-date. It is manifest from a reading of sub-r.13 that what is required to be given in Form 5A are the details of their family as defined in sub-r.6. Sub-r.6 as adverted to earlier says who are the relatives of the employee who will come under the definition of family. So the statement in Form 5A is given by a Government employee for the Government to note who are the persons who will come within the definition of family available in sub-r.6. The rules do not envisage a situation where the Government employee can nominate anybody as the person who is entitled to get family pension but the Government employee can only give the details of the persons who will come within the definition of family. The persons who are entitled to get family pension in the order of preference are mentioned in the K.S.R. and those person alone will get family pension.
8. The appellant claims family pension on account of her status as widow of the Government employee. As per sub-r.6 of R.90, widow is a person who is mentioned under clause (a) as one who is entitled to get a family pension. The widow gets a right to get family pension on the strength of K.S.R. and even the husband cannot say that the family pension should not be given to the widow and it has to be given to somebody else. Family pension cannot be said to be the part of the estate of the deceased employee so that he could take a decision as to whom it has to go on his death. Family pension is admissible on account of the status of a widow and not on account of the fact that family pension forms part of the estate of the deceased employee and it devolved on his death to the widow. It is in the light of the above provisions in the rules that the question whether the appellant continued to be the wife of the deceased Government employee till h is death becomes relevant. If she continued to be the wife of Sankarankutty till his death and the marriage had not been dissolved before that, she is entitled to get family pension as per the K.S.R. irrespective of the fact that in Form 5A given by him the name of the appellant is not mentioned. Even though sub-r.13 of R.90 requires that the details of the family have to be given in Form 5A, the omission on the part of the government employee to mention in the above Form the name of somebody who will come within the definition of family available in the rules and is entitled to get family pension, will not be a reason for denying family pension to him. One who is not entitled to get family pension as per rules cannot claim family pension merely for the reason that his name is mentioned in Form 5A given by the Government employee. It is not necessary that the Government will have to decide who are the persons entitled to get family pension solely on the basis of the details given in Form 5A. On the other hand, Government have to take a decision as to who are entitled to get family pension strictly in accordance with rules.
9. In Jodh Singh v. Union of India & Anr. (AIR 1980 SC 2081) the Supreme Court had the occasion to consider the question regarding the right to get family pension and it was held that family pension is granted to compensate for death on account of hazards of service rendering dependants destitute. That was a case in which the employee nominated his parents, brothers and sisters as persons who were entitled to get family pension and he did not mention his wife as his dependant or the person entitled to get any pensionary benefits. There were materials available on records to show that relationship with the husband and wife was not cordial and the husband even filed a petitioner for annulment of marriage which was subsequently withdrawn. That was stated to be the reason for including the wife as a person who is entitled to get family pension. There it was held that the special family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow.
10. A case in which an employee made nomination for family pension in favour of his brother and also executed a will bequeathing his properties including family pension to the brother for the reason that his relationship with the wife and children was strained came up for consideration of the Supreme Court in Violet Issac v. Union of India 1991 (1) KLT 579. There the deceased was a railway employee and the rules did not provide for payment of family pension to brother or any other family member or relation of the deceased employee. The Supreme Court held that no other person except those mentioned in the rules are entitled to receive family pension. As per the Rules, widow is in the first category or persons who are entitled to get family pension.
11. Ext. P1 is a registered document in which it is stated that the marriage between the appellant and Sankarankutty was dissolved. There is no case that the dissolution of marriage was effected by any other means. The parties are Hindus and they are governed by the provisions of the Hindu Marriage Act. There are specific provisions in the above Act regarding dissolution of marriage. S.13 of the Hindu Marriage Act mentions the ground son which marriage can be dissolved. Dissolution of marriage by custom is prevalent in some communities among the Hindus. The parties have no case that there is any custom in the community of appellant by which dissolution of marriage is allowed by execution of a document. The custom which allows such a form of dissolution of marriage has to be established to be prevalent in the community by the person who says that because of the execution of a document, the marriage stands dissolved.
12. S.29(2) of the Hindu Marriage Act says that nothing contained in the Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act. If there is any special enactment which allows dissolution of marriage in the community of the appellant by execution of a document then also the marriage can be dissolved by executing a document. So the execution of Ext.A1 document can be considered as a valid dissolution of marriage only if it is established that divorce by executing a document is a custom recognised in the community of the appellant or that is permissible as per a special enactment. In so far as there is nothing to show that there is such a custom and there is any special enactment which permits dissolution of marriage by executing a document, Ext.A1 document cannot be accepted as proof of a valid dissolution of marriage of the appellant with Sankarankutty. The appellant continued to be the wife of Sankarankutty till his death. In the light of the above facts, the appellant is a person who will come within the definition of family available in sub-r.6 of R.90 of Part III of the K.S.R. The Government has to sanction family pension as per the K.S.R. This appeal is allowed directing the respondents to grant and disburse family pension as per the provisions of the Kerala Service Rules by treating the appellant as the wisdom of the deceased Sankarankutty who retired from service as Agricultural Field Supervisor.