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2015 DIGILAW 2182 (BOM)

Shakuntala Bansidhar Gadekar v. Union of India

2015-09-16

A.M.BADAR, S.S.SHINDE

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JUDGMENT : S.S.Shinde, J. 1] Heard. 2] Rule. Rule made returnable forthwith, and heard finally with the consent of the parties. 3] This Petition takes an exception to the order passed by the Armed Forces Tribunal, Regional Bench at Mumbai dated 2nd May, 2014, to the extent of not granting the prayer to direct the respondent to pay the full family pension to the petitioners and to declare para 11.3 of letter dated 12th November, 2008, as illegal and void. According to the petitioners, both the prayers have not been considered by the Armed Forces Tribunal [hereinafter referred for the sake of brevity as ‘Tribunal’]. 4] It is the case of the petitioners that, the respondent No.6 was the wife of deceased Vijay Gadekar, who was in Army, and was son of the present petitioners. The respondent No.6, after death of Vijay, has remarried to another person namely Manoj Dahake. After the death of Vijay, the dispute between the petitioners and the respondent No.6, arose about the entitlement of the pensionary benefits, hence, Writ Petition No.4390 of 2007 was filed. The matter was settled between the parties, and it was ordered that, the pensionary benefits, and insurance scheme benefits will be divided 50% each between the parties, and the same was recorded in the order dated 11th February, 2008, passed by the High Court. It is further case of the petitioners that, in pursuance of the order, the respondent No.4 instead of paying 50% to each of the parties to the settlement, paid entire final settlement of accounts and Armed Forces Provident Fund to the respondent No.6. The petitioners, by letter dated 24th April, 2010, informed the respondent No.4 that, the respondent No.6 has remarried with Mr. Manoj Dahake, and therefore, the respondent Nos.1 to 5 should stop the payment of family pension to the respondent No.6. The respondent No.4, by his letter dated 30th October, 2010 informed that, as per Circular dated 18.11.2008, bearing No.397, the pension can be given even after remarriage. According to the petitioners, the said Circular is contrary to the law. Since the dispute was not resolved the petitioners did file Writ Petition No.953/2012 before the Hon’ble High Court, but in view of the alternate remedy available, the Petition was disposed of, leaving open to the petitioners to avail the alternative remedy. According to the petitioners, the said Circular is contrary to the law. Since the dispute was not resolved the petitioners did file Writ Petition No.953/2012 before the Hon’ble High Court, but in view of the alternate remedy available, the Petition was disposed of, leaving open to the petitioners to avail the alternative remedy. The petitioners filed Original Application No.73/2012 before the Armed Forces Tribunal, Regional Bench at Mumbai, seeking direction to the respondent Nos.1 to 5 to recover 50% final settlement account, and AFPP fund amount from the respondent No.6 and to pay the said 50% recovered amount to the petitioner No.2, or in the alternate to the petitioner No.1. There was also prayed for revision of the family pension as per 6th Pay Commission. The direction was also sought to the respondents to pay the full family pension to the petitioners. There was also challenge to the para 11.3 of the letter dated 22.11.2008 issued by the respondent No.1 to 5. The Tribunal, by order dated 2nd May, 2014 directed the respondent No.6 to refund the amount of Rs.73,301/- to the present petitioner No.1 and further directed to recover the same from her share in the family pension. During pendency of the Application, the family pension of the respondent No.6 was stayed. It is the case of the petitioners that, the Tribunal has not considered challenge to the para No.11.3 of letter dated 12.11.2008. Hence this Writ Petition. 5] The learned counsel appearing for the petitioners submit that, para 11.1 (a) of the said letter deals with the family pension. The para 11.1 (a) gives the category of family i.e. widow or widower, up to the date of death or remarriage, whichever is earlier. By the said para, the definition of ‘widow’ as family member is given and she will remain family member upto the date of death or remarriage, whichever is earlier, and the said definition of widow, is in accordance with law and in accordance with the provisions of Hindu Adoption and Maintenance Act, 1956. According to the learned counsel appearing for the petitioners, after the re-marriage, the status of widow as family member vanishes and she becomes the family member of the family of her second husband after remarriage. Hence, she does not remain widow or the family member of the deceased husband. According to the learned counsel appearing for the petitioners, after the re-marriage, the status of widow as family member vanishes and she becomes the family member of the family of her second husband after remarriage. Hence, she does not remain widow or the family member of the deceased husband. But, para 11.3 is contrary to the category stated in para 11.1 (a) of the said letter. The learned counsel appearing for the petitioners invited our attention to the para 11.3 of the said letter and submits that, there is no rational reason behind giving the right of pension to the childless widow even after remarriage when she does not remain to be member of the family of deceased husband. It is submitted that, the petitioners and the respondent No.6 belong to Hindu Religion and are governed by Hindu Law. Para 11.3 of the said letter is contrary to Hindu Law. Before the independence, the Hindu Widow’s Re-marriage Act, 1856 was enacted as social re-formative statute giving right to remarriage to the widow, but Section 2 of the said Act takes away the rights of widow to the property of her deceased husband. However, thereafter, various Acts like Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act etc. were enacted. The 81th Law Commission Report, in view of subsequent enactment suggested to repeal the Act of 1856, hence on 31st August, 1983, Hindu Widow’s Re-marriage Act, 1856, was repealed. Section 21 of the Hindu Adoption and Maintenance Act, 1956 define dependents. The learned counsel appearing for the petitioners invited our attention to the provisions of Section 21 of the Hindu Adoption and Maintenance Act, 1956 and submits that, in view of definition of dependents given in the said section specially clause “iii” the widow is dependent so long as she does not re-marry. After her remarriage, the widow does not remain to be dependent or the member of the family of deceased husband. The pension scheme is started as on the death of the only earning member, the widow are the minor children were not only rendered orphans but face more often starvation. As a measure of socio-economic justice, family pension scheme was devised to help the family members of the deceased. Hence the scheme was to protect the dependents of the deceased economically. As a measure of socio-economic justice, family pension scheme was devised to help the family members of the deceased. Hence the scheme was to protect the dependents of the deceased economically. The family pension cannot be considered equally with the other properties [co-parcenary] of the deceased as it is like for maintenance of the dependants, and therefore, para 11.3 of the said letter – scheme is contrary to the provisions of Section 21 of the Hindu Adoption and Maintenance Act, 1956, and section 125 of the Criminal Procedure Code. The learned counsel invited our attention to the provisions of Section 125 of Criminal Procedure Code and submits that, the respondent No.6 was not entitled to claim maintenance after remarriage. It is further submitted that, though appeal is provided before the Supreme Court for challenging the order passed by the Tribunal, the Petition is maintainable in view of the Judgment of the Supreme Court in the case of L.Chandra Kumar Vs. Union of India, AIR 1997 SC 1125 . Therefore, relying upon the pleadings in the Petition and annexure thereto, and the relevant provisions, the learned counsel appearing for the petitioners submits that, Petition deserves to be allowed. 6] On the other hand, the learned Assistant Solicitor General appearing for the Respondent Nos.1 to 5 submits that, para 11.3 of the letter dated 12th November, 2008 is in consonance with the provisions of Hindu Succession Act. He further submits that, the Bombay High Court in the case of Sanjay Purushottam Patankar Vs. Prajakta Pramnod Patil in Appeal No.8 of 2007 in Notice of Motion No.80 of 2006 in Petition No.676 of 2006 decided on 25th June, 2015, while interpreting the provisions of Section 14 of the Hindu Succession Act, 1956, has taken a view that, there is no any provision in Hindu Succession Act, 1956 in pari materia with Section 2 of the Hindu Widow’s Re-marriage Act, 1856. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death. It is submitted that, though the counsel appearing for the petitioner has placed reliance on the provisions of Hindu Widow’s Re-marriage Act, 1856, the same was repealed by Parliament by enacting the Hindu Widow’s REMarriage [Repeal] Act, 1983. It is submitted that, though the counsel appearing for the petitioner has placed reliance on the provisions of Hindu Widow’s Re-marriage Act, 1856, the same was repealed by Parliament by enacting the Hindu Widow’s REMarriage [Repeal] Act, 1983. Therefore, the reliance placed by the learned counsel for the petitioner on Section 2 of the Hindu Widow’s Re-Marriage Act, 1856 is wholly misplaced. It is submitted that, the respondent No.6 is Class-I heir, and therefore, Section 14 of the Hindu Succession Act, 1956 inter alia stipulates that the property of a female Hindu is to be her absolute property. Therefore, he submits that, Petition may be dismissed. 7] We have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondent Nos.1 to 5 and the learned counsel appearing for the respondent No.6 at length. With their able assistance, we have perused the pleadings in the Petition, grounds taken therein and annexuxure thereto and the provisions of the Hindu Succession Act, 1956. The learned counsel appearing for the petitioner has placed reliance on Section 2 of the Hindu Widow’s Re-Marriage Act, 1856, however, the Hindu Widow’s Re-Marriage Act, 1856 was repealed by Parliament by enacting the Hindu Widow’s Re- Marriage [Repeal] Act, 1983. The learned counsel appearing for the petitioner has also argued that, there is no rational reason behind giving the right of pension to the childless widow even after re-marriage when she does not remain to be member of the family of deceased husband. Para 11.3 of the letter dated 12th November, 2008, reads as Under : 11.3 The childless widow of a deceased personnel shall continue to be paid family pension even after her re-marriage subject to the condition that the family pension shall cease once her independent income from all other sources becomes equal to or higher than the minimum prescribed family pension in the Central Government. The family pensioner in such cases would be required to give a declaration regarding her income from other sources to the Pension Disbursing Authority every six months. 8] Upon careful scrutiny of the material placed on record, and in the light of the provisions of Sections 8 and 14 of the Hindu Succession Act, 1956, it cannot be said that, there is no rational reason behind giving the right of pension to the childless widow even after re-marriage. 8] Upon careful scrutiny of the material placed on record, and in the light of the provisions of Sections 8 and 14 of the Hindu Succession Act, 1956, it cannot be said that, there is no rational reason behind giving the right of pension to the childless widow even after re-marriage. The provisions of Section 8 of the Hindu Succession Act, 1956, provides the general rules of succession in the case of males. The said Section reads as under: 8. General rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceases; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.” While explaining the scope of Section 8 of the said Act, the Bombay High Court in the case of Sanjay Purushottam Patankar [supra], observed that, the property of the male Hindu dying intestate shall devolve upon the heirs being relatives specified in Class I of the Schedule. Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule and so on. It is not in dispute that the Respondent No.6, is an heir as specified in Class I. Section 9 provides the order of succession among heirs and stipulates that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. 9] While explaining the scope of Section 14 of the Hindu Succession Act, 1956, it is observed in the said Judgment that, Section 14 of the Hindu Succession Act, 1956, inter alia stipulates that the property of a female Hindu is to be her absolute property. Section 14 reads thus: 14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. Section 14 reads thus: 14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” In para 9 of the said Judgment, it is further held that, Section 14 (1) categorically states that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The explanation to section 14 (1) clarifies that property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever etc. We do not find any provision in Hindu Succession Act, 1956 in pari materia with section 2 of the Hindu Widow’s Re-Marriage Act, 1856. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death. 10] In the light of the discussion in the foregoing paragraphs, in our considered view, there is no any infirmity in the order passed by the Tribunal. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death. 10] In the light of the discussion in the foregoing paragraphs, in our considered view, there is no any infirmity in the order passed by the Tribunal. Therefore, the Writ Petition is devoid of any merits, the same stands rejected. Rule discharged.