ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A.NO

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
O.A.NO. 50 OF 2014
TUESDAY, THE 05TH DAY OF AUGUST, 2014/14TH SRAVANA, 1936
CORAM:
HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT:V.SANTHAKUMARI, AGED 62 YEARS,
W/O LATE D.SASIDHARAN PILLAI, (EX.NO.14288312 W RANK L/NK)
SANTHA NIVAS, CHEVARAMBALAM,
CHEVAYUR, KOZHIKODE – 673017.
BY ADV. SRI.V.V.SURENDRAN
VERSUS
RESPONDENTS:1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI – 110 001.
2. OFFICE IN CHARGE OF SIGNALS ABHILAKH KARYALAYA,
SIGNALS RECORD (NER GROUP),
POST BAG NO.5, JABALPUR,
MADHYAPRADESH – 482001.
3. THE MANAGER, INDIAN OVERSEAS BANK,
MEDICAL COLLEGE BRANCH,
KOZHIKODE – 673 008.
4. M.V. VASANTHAKUMARI AMMA, D/O RUKMINI AMMA,
VIJAYAMANDIRAM, POZHIKKARACHERIYIL,
PARAVOOR VILLAGE, KOLLAM – 691301.
5. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION)
OFFICE OF THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION)
DRAUPADI GARH, ALLAHABAD, UTTERPRADESH – 211014.
ADDL.R6: SUDHEER, S/O VASANTHAKUMARI AMMA,
RESIDING AT VIJAYAMANDIRAM, POZHIKKARACHERIYIL,
PARAVOOR VILLAGE, KOLLAM – 691301.
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O.A.No. 50 of 2014
ADDL.R7: SUDHA @ SEENA, D/O VASANTHAKUMARI AMMA,
RESIDING AT VIJAYAMANDIRAM, POZHIKKARACHERIYIL,
PARAVOOR VILLAGE, KOLLAM – 691301.
(ADDL.RESPONDENTS NO.6 AND 7 ARE IMPLEADED AS PER ORDER DATED
26.06.2014 IN M.A.NO. 373 OF 2014 IN O.A.50 OF 2014).
R1,2,3 & 5 BY ADV.SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVERNMENT COUNSEL.
R4 BY ADV.MRS.REENA ABRAHAM.
ORDER
SHRIKANT TRIPATHI, MEMBER(J):
1. The amended O.A filed on behalf of the applicant is taken on
record after condoning the delay. M.A.No. 430 of 2014 is accordingly
disposed of.
2. Heard Mr.P.A.Harish for the applicant, Mr.Tojan.J.Vathikulam
for respondents No.1, 2, 3 and 5. None is present for the respondents
No.4,6 and 7. Mrs.Reena Abraham had appeared on the previous date
on behalf of the respondent No.4, but today she has not appeared nor
sent any adjournment slip. The respondents No.6 and 7 are personally
served by speed post, but none of them is present. So, we consider it
just and expedient to proceed with the case, which will be ex parte
against respondents No. 4, 6 and 7.
O.A.No. 50 of 2014
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3. The applicant V.Santhakumari claims ordinary family pension
as the widow of late D.Sasidharan Pillai, Ex Lance Naik No.14288312
W, who was admittedly an Army pensioner, and died on 8 th October
2010, leaving behind the applicant as the sole surviving dependent. The
family pension is being denied to the applicant on the ground that there
was a dispute between the applicant and the 4 th respondent regarding
the widow-ship. The dispute was ultimately brought before the Family
Court, Kozhikode, vide O.P.No.162 of 2011.
The Family Court
dismissed the applicant's suit. So, she filed Matrimonial Appeal No.15 of
2012 before the Hon'ble High Court of Kerala, which was decided on 6 th
February, 2013 vide the copy of judgment, Annexure-A7(2). The Hon'ble
High Court allowed the Matrimonial Appeal and declared the applicant
Santhakumari as the sole surviving widow of the deceased Sasidharan
Pillai. While declaring so, the Hon'ble High Court further declared that
the respondents No.6 and 7 were also the legal-heirs of the deceased
Sasidharan Pillai, born out of the wedlock of 4 th respondent and late
Sasidharan Pillai. The 6th respondent is the son and the 7th respondent
is the daughter of late Lance Naik Sasidharan Pillai.
As per the
applicant, both of them have attained majority and are married,
therefore, they are not dependent in any way on the estate of the
deceased.
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O.A.No. 50 of 2014
4. We have to see as to which of the aforesaid legal-heirs of the
deceased is entitled to
receive ordinary family pension.
To put it
otherwise, whether son and daughters have any precedence over the
widow or not, or all of them are entitled to share the ordinary family
pension jointly. This question needs to be examined as per the Pension
Regulations for the Army, 2008, (hereinafter referred to as the “new
Regulations”). As per Regulation 63 of the new Regulations, ordinary
family pension is payable to the family of the deceased. Regulation 66
defines 'family', according to which, the first category is of wife and
husband, as the case may be, married before or after the retirement of
the service personnel. The second category is of judicially separated
wife or husband, as the case may be, subject of course to the condition,
firstly that the judicial separation not granted on the ground of adultery
and secondly the person surviving was not held guilty of committing
adultery. The third category is of unmarried daughters/unmarried sons
and the 4th category is of parents, who were wholly dependent on the
service personnel when he was alive. In this way, the widow is entitled
to preference over other heirs. Regulation 67 of the new Regulations
deals with
the period for which ordinary family pension is payable,
according to that provision, the ordinary family pension in the case of a
widow or widower is payable upto the date of
marriage, whichever is earlier.
his or her death or
O.A.No. 50 of 2014
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5. What is quite relevant is to narrate that the 4th respondent and
late Lance Naik Sasidharan Pillai dissolved their marriage by executing
a registered deed dated 20th January 1992, on which basis the Hon'ble
High Court of Kerala allowed the Matrimonial Appeal and passed the
decree in favour of the applicant. A copy of the aforesaid deed, which is
in Malayalam, is available with Mr.Tojan.J.Vathikulam, the learned
counsel for the respondents No.1, 2, 3 and 5, who produced a copy
thereof today for perusal of the Bench. In that document, the age of the
6th respondent is mentioned as 19 and the 7th respondent as 17 years. It
means that the 6th and 7th respondents were, respectively, aged about 19
years and 17 years on 20th January, 1992, so, apparently after about 22
years from that date they are presently aged about 41 and 39 years
respectively.
In our view, the 6th and 7th respondents have not only
crossed the age bar of 25 years, but have also become quite major.
According to the learned counsel for the applicant, both of them are
married and are now not dependent in any way on the estate of the
deceased.
6. The new Regulations have laid down a clear cut guidelines that
the ordinary family pension is first payable to the widow.
But she
becomes disqualified, as per Regulation 67 (i) of the new Regulations, if
O.A.No. 50 of 2014
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she marries. There is no allegation that the applicant re-married any
time after the death of the deceased, so the disqualification as provided
in Regulation 67(i) of the new Regulations has no application against
the applicant. It is also relevant to state that as per Regulation 68 of the
new Regulations, ordinary family pension is not payable to more than
one member of the family at a time, subject of course, to the provisions
of Regulations 71, which is not applicable in the present matter because
both the children, i.e respondents No.6 and 7 are no more dependent on
the estate of the deceased and are married and have independent
income.
7. For the reasons stated above, the Original Application is liable
to be allowed.
8. The Original Application is allowed. The respondent Nos. 1, 2,
3 and 5 are directed to sanction and pay ordinary family pension to the
applicant with effect from 8th October, 2010, being the date of death of
late Lance Naik Sasidharan Pillai, and pay the entire arrears of the
ordinary family pension to her within four months from the date of receipt
of a copy of this order, failing which the unpaid amount will carry a
simple interest at the rate of 8% per annum to be paid by the respondent
Nos.1, 2, 3 and 5 to the applicant.
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O.A.No. 50 of 2014
9. There will be no order as to costs.
10 Issue free copy of this order to both side.
Sd/-
Sd/-
VICE ADMIRAL M.P.MURALIDHARAN,
MEMBER (A)
11.
JUSTICE SHRIKANT TRIPATHI,
MEMBER (J)
After the dictation of the order, Mr.Tojan J.Vathikulam,
appearing for the respondents No.1, 2, 3 and 5 prays for leave to appeal
to the Supreme Court. In our view, no point of law of general public
importance is involved in the decision, therefore, the leave prayed for is
refused.
Sd/VICE ADMIRAL M.P.MURALIDHARAN,
MEMBER (A)
pb
Sd/JUSTICE SHRIKANT TRIPATHI,
MEMBER (J)
(True copy)

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