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2023 DIGILAW 973 (GUJ)

General Manager v. Ilaben Chhaganbhai Sarvaiya

2023-08-09

BIREN VAISHNAV, DEVAN M.DESAI

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JUDGMENT : BIREN VAISHNAV, J. 1. This is a petition filed under Article 227 of the Constitution of India challenging the order dated 30.03.2017 passed in O.A. No.701 of 2016 with M.A. No.534 of 2016 passed by the Central Administrative Tribunal, Ahmedabad. 2. By the aforesaid order, the application of the original applicant has been allowed by the Central Administrative Tribunal, Ahmedabad, directing the original petitioners to take immediate steps to order for sanctioning family pension and to pay the arrears and continue to pay family pension to the original applicant before the Tribunal. 3. Facts in brief are as under: 3.1 The respondent no.1-original applicant (‘the respondent’ for short) had married to the respondent no.2 and got divorced as per their customs on 19.01.2009 and came back to her parental house. 3.2 The mother of the respondent was working with the petitioners as Safaiwali. She retired on 30.06.2016 and thereafter died on 11.07.2016. The respondent approached the Central Administrative Tribunal, Ahmedabad, to claim family pension. 3.3 Upon respondent making representation dated 17.01.2013 to the petitioner no.2, the Railway Board issued certain executives/Joint Procedure Order which were communicated through Headquarter Office, Mumbai vide letter dated 26.07.2013 informing the respondent to submit Divorce Deed issued by Court of Law in case of divorced daughter. 3.4 The Department of Pension and Pensioners’ Welfare, Ministry of Personnel. P.G. & Pension, GOI, issued certain OM dated 11.09.2013 clarifying the eligibility of widowed/divorced daughters for grant of family pension. 3.5 Vide letter dated 25.09.2013 the respondent was advised to submit legal divorce certificate as per Court of Law. However, the respondent did not produce the divorce deed and instead submitted notarized copy of the customary divorce deed which was not sufficient for granting family pension. 3.6 Respondent no.1 thereafter made few representations to grant her family pension, in reply to which, the petitioners advised her to submit a legal Divorce Certificate issued by Court of Law. 3.7 The respondent thereafter sent a statutory notice dated 30.12.2014 to the Railway Administration to take prompt action regarding the issue, to which, the stand of the petitioners was the same. 3.7 The respondent thereafter sent a statutory notice dated 30.12.2014 to the Railway Administration to take prompt action regarding the issue, to which, the stand of the petitioners was the same. 3.8 The respondent thereafter filed O.A. No.701 of 2016 before the Central Administrative Tribunal with a prayer to quash the order dated 09.04.2014 directing the petitioners to release the family pension w.e.f. 11.07.2012 along with interest @ 12% with a further direction to the petitioners to continue to pay the family pension to the respondent. 3.9 The Tribunal allowed the O.A. filed by the respondent and granted the reliefs as sought for. Hence, this petition. 4. Ms.Archana Amin learned advocate for the petitioners made the following submissions: 4.1 That the impugned order is illegal, improper, unjust and contrary to the guidelines issued by the Government of India as well as the Joint Procedure Code. 4.2 Ms.Amin would further submit that the Tribunal committed a grave error by not considering the fact that since petitioners are acting as per the orders of the Railway Board, it is not possible for them to initiate any procedure for sanction of family pension in favour of the respondent no.1 as she is not falling within the category of eligible divorced daughter to receive family pension unless she submits legal decree of divorce issued by the competent Court. 4.3 Ms.Amin would submit that the petitioners had not questioned the validity of the alleged divorce deed but they insisted upon the divorce deed issued by a court of law as per the Joint Procedure Code, which is as per the law, and since the respondent no.1 is not falling within the category of eligible divorced daughter to receive family pension as she has not submitted legal decree of divorce issued by the competent Court. 4.4 Ms.Amin would further submit that the learned Tribunal has erred in condoning the inordinate and unexplained gross delay in filing O.A. No.701 of 2016. 4.5 She would also submit that learned Tribunal has also erred in considering the fact that the submission of Divorce Decree issued by a Court of Law is an administrative requirement for granting family pension to avoid frauds and therefore the same ought not to have interfered with. 4.6 She would submit that the Tribunal has no jurisdiction to entertain the application filed before it and the jurisdiction lies to the Civil Court. 4.6 She would submit that the Tribunal has no jurisdiction to entertain the application filed before it and the jurisdiction lies to the Civil Court. She would further submit that the direction of the Tribunal to the petitioners to investigate the fact of divorce of the respondent was perverse as the Railway Administration has no judicial power to investigate a civil matter and record evidence. 4.7 She would thus urge this Court to allow this petition by quashing and setting aside the impugned order dated 30.03.2017. 5. Mr.Samir Gohil learned advocate appearing for the respondent no.1 would submit that the order passed by the Central Administrative Tribunal, Ahmedabad, in passed in O.A. No.701 of 2016 is just and proper and the respondent should be granted family pension. He would rely on the order passed by this Court in case of Samirabanu D/O Sabirahussain Malek Versus Union Of India rendered in Special Civil Application No.18168 of 2021. 6. We have heard learned advocates for the respective parties. 6.1 Perusal of the order of the Tribunal would indicate that the Tribunal has held that in light of the decision of this Court in case of Twinkle Rameshkumar Dhameliya v. Superintendent rendered in SCA No.1260 of 2005 dated 23.02.2005, the respondents could not have insisted for production of a divorce deed duly authenticated from the competent Court. This Court after considering the rival submissions of the learned counsel for both the sides held that the authorities do not dispute the fact that the original applicant before the Tribunal was a Hindu. That there was no challenge to the customary divorce deed. The fact that there was dissolution of marriage remains undisputed. The Tribunal on perusal of the divorce deed held that prima-facie divorce was dissolved and therefore the authorities could not insist for an authenticated decree from a Civil Court / Family Court as proof of divorce of dissolution of marriage. 6.2 The coordinate bench of this Court in case of Samirabanu D/O Sabirahussain Malek (supra) while dealing with the similar issue, in paragraph nos.7 to 13 has held as under: “7. We have heard the learned advocates for the respective parties and perused the material placed on record and order passed by the learned Tribunal. 6.2 The coordinate bench of this Court in case of Samirabanu D/O Sabirahussain Malek (supra) while dealing with the similar issue, in paragraph nos.7 to 13 has held as under: “7. We have heard the learned advocates for the respective parties and perused the material placed on record and order passed by the learned Tribunal. From the record, it reveals that deceased -Sabbirhussain Gulam Malek was an employee of respondent No.2 authority, who was retired on 31.01.2004 from the respondent department and he was getting regular pension. Pension papers are produced at Annexure-A. As the mother of the petitioner expired on 26.08.2011, the death certificate is produced at Annexure-B. 8. As per the say of the petitioner, she is entitled to get family pension and for that she had approached the respondent authority under Rule 75 of the Railway Service (Pension) Rules, 1975 (for short, “the Rules”). As the petitioner was residing with her father on account of her divorce since 27.01.2012, she addressed a communication to the respondent authority along with requisite documents, but unfortunately her request came to be rejected and a stand was taken by the respondent that the divorce of the petitioner took place on 10.04.2015 and the date of death of the pensioner and his spouse is on 16.03.2015 and 26.08.2011 respectively and since the divorce of the petitioner has occurred after the death of her parents thus, she was not dependent on her parents. When they were alive, hence she is not eligible for the family pension in terms of Railway Board letter dated 26.09.2013. Except this, no any reason is assigned for denial of request made by the petitioner. 9. Now coming back to the controversy involved in the matter as to whether the petitioner was dependent on her parents, and her divorce took place when her father was alive. To deal with the aforesaid core issues, the respondent authority has relied on Divorce Deed dated 10.04.2015 produced at page 40 of the compilation and come to the conclusion that the death of parents occurred prior to 10.04.2015, therefore, the petitioner was not dependent on deceased pensioner when he was alive. To deal with the aforesaid core issues, the respondent authority has relied on Divorce Deed dated 10.04.2015 produced at page 40 of the compilation and come to the conclusion that the death of parents occurred prior to 10.04.2015, therefore, the petitioner was not dependent on deceased pensioner when he was alive. The learned Tribunal has also endorsed the said view based on the said divorce deed dated 10.04.2015 which is produced on record at Annexure-D (page 26) of the compilation and relied only on para-5 of the said deed which reads as under: “(5) In that regard I the first party Shakilahmed alias Chhotamunna Abdulrahim Ansari in present of mind before the wintess (1) Mohammedhusen Abdulrazzak Shaikh Age: 46 years, Religious: Muslim Res. At : 148, Kankariya railway Colony, Gomtipur, Ahmedabad (2) Sabirhusen Gulamhusen Malek Age: 62 years, Religious: Muslim, Res. At : 38, Sohel Park, Ramol, Jantanagar, Ramol, Ahmedabad, in the presence of these witness my saying “Talak” three times given talak to the second party Samirabanu D/o. Sabirhusen Gulamhusen malek and free her from my Nikah as my Wife and this “Talak” is accepted by the second party Samirabanu D/o. Sabirhusen Gulamhusen Malek in presence of these two witnesses. Thus we both the parties are free from the relation of Husband-Wife.” 10. But while considering the said document, the learned Tribunal has not considered para 16 of the said document which reads as under: “16.The divorce deed is made before the notary on Date 27.01.2012 and which has been registered with Registration Sr.No.61/2012” 11. The said deed cannot be read in isolation of Clause 16. It is required to be read as a whole and from combined reading of the aforesaid two clauses, it clearly reveals that prior to the said divorce deed dated 10.04.2015, on 27.01.2012 vide notarized registered document, Serial No.61 of 2012 customary divorce took place in the presence of two witnesses wherein, further it is clearly stated that the case (Criminal Case No.219 of 2011) filed under the Domestic Violation Act is pending and if any other litigation is pending the same is required to be withdrawn. Thus, in view of pendency of same litigation, divorce took place of the petitioner and the petitioner has obtained customary divorce which is also recognized under the Muslim Law. Thus, in view of pendency of same litigation, divorce took place of the petitioner and the petitioner has obtained customary divorce which is also recognized under the Muslim Law. If we consider the said fact and combined reading of both the said Clause Nos.5 and 16 of the document dated 10.04.2015, it clearly reveals that on 27.01.2012, the petitioner got divorced from her husband which is prior to the death of her father i.e. on 16.03.2015. Only with a view to fulfill the requirement, she has got registered deed subsequently, which cannot be construed that she has got divorced and subsequent to the death of pensioner, she was not divorced before the death of her father. Hence, she was not a dependent on the pensioner. 12. As disclosed above, the respondent authority and the learned Tribunal has also read Clause 5 in isolation of Clause 16 of registered divorce deed dated 10.04.2015. Even, the divorce of the petitioner is not disputed by anyone. In other words, the party of customary divorce has also not disputed the factum of divorce before the authority. In view of above rejection of pension request, nothing is found or any valid or sound reason except that, the divorce deed is subsequent to the death of pensioner. We are of the considered view that as divorce is recognized under the customary law and factum of customary divorce has neither been disputed by the authority, nor challenged by her husband of the petitioner. In view of the above, it clearly reveals that the dissolution of marriage stood prior to the death of petitioner’s father i.e. on 27.01.2012. 13. In view of the above, the respondent authority and learned Tribunal have committed grave error in dismissing the request of the petitioner. Even otherwise, customary divorce is already recognized by this Court and since the issue is squarely covered by a decision of this Court in the case of Union of India versus Sudhaben Nayak D/o Late Dinanath Nayak and Subhadraben Nayak, decided on 17.02.2020 in Special Civil Application No.324 of 2018, wherein validity of customary divorce has been upheld and in absence of any recognition of divorce from the competent authority, claim of a divorcee daughter cannot be declined. Even similar view is also taken by this High Court in the case of Union of India versus Rekhaben D/O Gopalbhai N Parmar, decided on 22.12.2021 in Special Civil Application No.1871 of 2021 and as Clause 19(6) in relation to railway servant includes unmarried or divorced daughter, she is entitled to get family pension. Hence. the petitioner is entitled to get family pension.” 7. In view of the above, the petition stands dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.