Kerala HC: Under S.14 Disabilities Act, District Court And Designated Authority Have Concurrent Jurisdiction To Grant Limited Guardianship

The learned Government Pleader, Smt. K.B Sony, as well as the Central Government Counsel, Sri. Girish Kumar submits that, as per Section 14 (1) of the Act, the District Court or the designated authority has concurrent jurisdiction when entertaining a petition. The party is given the option of either the jurisdiction of the District Court or the designated authority. Therefore, the legislature, in its wisdom, had drafted the section to give concurrent jurisdiction to the District Court as well as the designated authority. {Para 11}

12. A combined reading of Section 14 (1) coupled with Rules 4, 7 and 8 of the Kerala Rules, it is amply clear that the District Court or the designated authority notified by the State Government has concurrent jurisdiction to entertain a petition or appointment of a limited guardian of person who is coming under the definition of 'person with disability' under Section 2(s) of the Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 32 of 2023

Decided On: 20.10.2023

Abootty K.A. Vs. Kolangottil Pathumma and Ors.

Hon'ble Judges/Coram:

Basant Balaji, J.

Citation: 2023:KER:69216, MANU/KE/3830/2023.

Print Page

Kerala HC: Parliament In Its Wisdom Permits Only Limited Not Permanent Guardianship For Mentally Disabled Person Under PwD Act

A co-joint reading of the above-extracted

provisions substantiates that the District Court or the

designated Authority are empowered to appoint a

limited guardian for a person who is suffering from a

disability as defined under Section 2(s) of the

Disabilities Act, which includes mental disability. {Para 9}

10. It is as per the provisions of the

Disabilities Act that the designated authority had

passed Exts.P14 and P15 orders.

11. On an analysis of the scheme of the

Disabilities Act, a person can only be appointed as a

limited guardian because the office of guardianship

operates on a mutual understanding and trust between

the guardian and the person with a disability for a

specific purpose or situation or to take a particular

decision in accordance to the will of the person with a

disability. Presumably, it is in the above context that the

Parliament, in its wisdom, has only permitted limited

guardianship and not permanent guardianship.

Therefore, the concept of permanent guardianship is

alien to the Disabilities Act. Similarly, there is no

provision under the National Trust Act to appoint a

guardian for a person with mental illness. (Read the

decision of this Court in Latha T.B @ Latha Ravi and

others v. Union of India [2021(3) KHC 304].

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO.25127 OF 2024

BINDUMOL A T  Vs  UNION OF INDIA

PRESENT

 MR.JUSTICE C.S.DIAS

 8TH DAY OF JANUARY 2025.

Citation: 2025:KER:1151

Print Page

Supreme Court: Child Adopted By Widow After Death Of Govt. Employee Not Entitled To Family Pension

 It may also be appropriate to refer to the decision of this Court in Poonamal v. Union of India, MANU/SC/0359/1985 : (1985) 3 SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words:

Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. {Para 12}

It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term 'family' cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death.

12.1.  In the present case, the heirs listed Under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of 'family' Under Rule 54(14)(b) of the CCS (Pension) Rules.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Decided On: 17.01.2023

Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Citation: MANU/SC/0041/2023.

Print Page

Is a Child Adopted By Widow After the Death Of a Government Employee Entitled To Family Pension?

It is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of 'family' is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to 'family pension' and in relation to the government servant. Therefore, the word "adoption" in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Ram Shridhar Chimurkar Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Decided On: 17.01.2023.

Citation: MANU/SC/0041/2023

Print Page

Whether the concubine of a government servant can get a family pension if she continues to reside with him after the death of his wife?

 When there is a specific enactment of the Domestic Violence

Act, 2005, Rule 49 of the Tamil Nadu Pension Rules, 1978 will take a

backseat, as Domestic Violence Act, 2005, will come to the driver’s seat and

the woman will have to be given protection and the Rule cannot supersede

the Statute mentioned supra. In the light of the Domestic Violence Act,

2005, if the live-in-relationship is established, then the woman attains the

status of a wife. The march of law happens only while considering the cohabitation

that, continues after the death of the first wife.{Para 13}

14. In a similar circumstance, a learned Single Judge of this Court in

the case of C.Sarojini Devi vs. The Director of Local Fund Audits,

Chennai, has held that, the second wife is entitled to payment of family

pension after the death of the first wife. For better appreciation, relevant

portion of the said judgment is extracted below:

“12. Even in the above judgment, the petitioner

therein had married the Government Employee during

the subsistence of the first marriage. The only difference

is that in that case, the first marriage got dissolved in the

year 2003 and the first wife died in the year 2005. This

Court took into consideration the judgment of the

Hon'ble Supreme Court in Dhannulal's case. The Hon'ble

Supreme Court, in the said case has held that Law

presumes in favour of marriageand against concubinage,

when a man and woman have co-habitated continuously

for a long time. By relying upon this judgment, this

Court held that after the dissolution of marriage with the

first wife and after her death, the petitioner therein was

living with the deceased Government servant till his

death. This was taken into consideration by this Court

and this Court held that the petitioner therein must be

considered to be the wife of the deceased Government

servant atleast after the dissolution of the first marriage

and the subsequent death of the first wife.

13. This Court is in complete agreement with the

proposition of law that has been enunciated in the above

judgment. It is very easy to brand the petitioner as a

concubine and deprive her of her livelihood. However,

the fact remains that the petitioner lived with the

deceased Dr.A.Chinnasamy from the year 1975 up to his

death in the year 2009. This means that she lived with

him for nearly 34 years. The petitioner also gave birth to

three children. If the petitioner had made this claim

when the first wife is alive, then obviously the petitioner

will not be entitled for Family Pension, since her

relationship is not recognized by law.

14. The march of law happens only while

considering the co-habitation that continues after the

death of the first wife. That is the most crucial factor that

was taken into consideration by this Court while

granting the Family Pension to the petitioner in the case

cited supra. Even in the present case, the first wife died

on 02.04.1997. Thereafter, the petitioner lived with the

deceased Dr.A.Chinnasamy till his death on 20.01.2009.

During this period, it can always be construed that the

petitioner and the deceased Dr.A.Chinnasamy were

living as husband and wife and their long co-habitation

itself raises that presumption of marriage. Added to that

the deceased Dr.A.Chinnasamy had also nominated the

petitioner on 11.05.1999 to receive the Family Pension

after his death.

15. In the considered view of this Court, this

Court has to necessarily lean towards the presumption of

marriage rather than branding the petitioner as a

concubine. This will be the most appropriate way to deal

with the facts of the present case, if justice has to be

done to the petitioner.

16. In view of the above discussion, this Court

has no hesitation to quash the impugned order passed by

the first respondent on 01.02.2016 and accordingly, the

same is quashed. The first respondent is directed to pass

necessary orders and sanction Family Pension to the

petitioner with effect from the date of death of

Dr.A.Chinnasamy i.e., from 20.01.2009 and disburse the

arrears of pension to the petitioner, within a period of

twelve (12) weeks from the date of receipt of a copy of

this order. The petitioner shall be continued to be paid

with the Family Pension till her life time.”

IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM :

 MR.JUSTICE S.VAIDYANATHAN

W.P.No.5706 of 2021

Malarkodi @ Malar Vs. The Chief Internal Audit Officer,

Board Office Audit Branch,

DATED : 09.03.2021

Print Page

Whether second wife is entitled to get family pension?

That from the aforesaid discussion, I hold and conclude:

(i) marriages covered by Section 11 of the Hindu Marriage Act are void i.e. void from inception and have to be ignored as not existing in law at all when such a question arises.

(ii) a woman performing the marriage with a Hindu Government servant during the lifetime of his wife cannot be said to be his "widow".

(iii) definition of "Family" under sub-rule 16 of Rule 116 of the Maharashtra Civil Services (Pension) Rules, 1982 includes only wife and a judicially separated wife with a rider that judicial separation is not granted on the ground of adultery.

(iv) expression "Family pension is payable to more widows than one" in terms of sub-rule (6) clause (a) of Rule 116 of the Maharashtra Civil Services (Pension) Rules, 1982 cannot be read in isolation but has to be read and understood in context of definition of "Family" defined under Rule 116(16) (b) of the Maharashtra civil Services Pension Rules, 1982, in as much as, pension is payable to the "Family of deceased",

(emphasis supplied).

Thus, taking into consideration the provisions of the scheme of "Family pension" under Rule 116 and the definition of "Family", I hold that a Hindu woman who marries a Hindu man during the subsistence of his first marriage is excluded from the scheme of Rule 116 of the Maharashtra Civil Services Pension Rules and thus not entitled to the family pension. I therefore answer Question no. 1 in negative.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 463 of 2014 and Civil Application No. 1067 of 2014

Decided On: 28.02.2019

 Kamal Mahaling Patil Vs.  Indubai Mahaling Patil and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 594

Print Page

Whether widower is entitled to get family pension if he has remarried?

As per Rule 116(5)(i) of the Pension Rules, in the case of a widower, the family pension is payable upto the date of his death or remarriage, whichever is earlier. The meaning of the word 'widower' as stated in Black's Law Dictionary, 9th Edition is "a man, whose wife has died and who has not remarried". It is true that the petitioner has not got remarried after the death of Sunanda, but indisputably, in view of his second marriage with some other woman during the life time of Sunanda, may be with the consent of Sunanda, he would not assume the status of 'widower', who has not performed marriage. He certainly continues to be the husband of the woman with whom he has performed second marriage. It would be rather a hyper-technical an approach to say that the petitioner, who has already performed a second marriage/remarriage, should not be called as a person "remarried" for the purpose of getting family pension, only because the said remarriage was not after the demise of his wife Sunanda. The intention underlying Rule 116(5)(i) of the Pension Rules is not to extend the benefit of family pension to a person, who is enjoying a marital life with some other woman than the deceased Government servant.

7. As stated above, the case of the petitioner certainly would not fall under Rule 116(5)(i) of the Pension Rules since he is enjoying the marital life even after the death of Sunanda. The petitioner would not be entitled to get family pension, claiming himself to be the widower of the deceased Sunanda, since he has remarried.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6117 of 2007

Decided On: 13.11.2017

 Deelip  Vs. Government of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and Sangitrao S. Patil, JJ.

Citation: 2018(5) MHLJ 129

Print Page

Whether children born out of physical relationship between man and woman will get benefit of deeming legitimacy?

I rely on the decision in Revanasiddappa & anr. v. Mallikarjun & Ors. (supra), where it is held that "however one thing must be made clear that benefit given under the amended section 16 is available only in cases where there is a marriage may such marriage is void or voidable in view of the provisions of the act". In converse, if there is no marriage may be void or voidable, then, this benefit of 'deeming legitimacy' is not available for the children, who are begotten out of any physical relationship of a man and a woman. Thus, the meaning of marriage and the benefit of legitimacy as contemplated under section 16 is not wide but is restricted to and controlled by the word 'marriage'. Any physical relationship between a man and a woman is not contemplated as a marriage under section 16 of Hindu Marriage Act. 

IN THE HIGH COURT OF BOMBAY

Review Petition No. 19 of 2016 in First Appeal No. 577 of 2015

Decided On: 07.06.2017

Indubai Jaydeo Pawar and Ors. Vs. Draupada and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2017(6) MHLJ 816

Print Page

Whether sister of deceased employee is entitled to get family pension?

In my opinion, since the respondent­sister had gone to
the Court with a suit for  claiming declaration and consequent
pensionary benefits after the death of her brother Sheikh Sardar, it
was wholly unnecessary to go into the question whether appellant
Hoorbanoo was given Talak or was his wife, who was divorced or
not.  The reason is that under the Pension Rules, the respondentplaintiff
Shabnoorbee is not entitled to the pensionary benefits
after the death of her brother, who was working as Safai Kamgar
in Municipal Council, Buldana.  It cannot be disputed that grant of

benefits   of   pension   to   a   Government   servant   or   his   family
members would be clearly governed by the Pension Rules.   It is
true   that   the   pension   may   be   a   property   as   contended   by
Ms Sapkal but then the entitlement thereof due to the death of
deceased employee would be governed by the statutory Pension
Rules   framed   by   the   Government   and   not   by   the   rules   of
succession under the personal law.  The reason is that the property
namely; the pension is given by the Government and is not a
matter of property coming in the hands of the legal heirs from
their ancesters or the source contemplated by the personal law of
parties.     It   is   clearly   the   prerogative   and   the   right   of   the
Government to define and regulate as to whom and to what extent
the property namely; the pension should be given after death of its
employee.  Therefore, in my opinion, award of pension after death
of   an   employee   would   not   be   governed   by   the   personal   laws
namely; Mohammedan Law or Hindu Law or as the case may be.
It   is   a   different   matter   that   as   a   beneficial   legislation   the
Government may extend the benefits to the persons like sister of
the deceased employee but then that is within the domain of the
Government and the Legislature and not within the scope of the
judicial review.   It is, therefore, clear from the above discussion

that even if the respondent­Shabnoorbee is sister or assuming the
legal heir of deceased Sheikh Sardar, she would not be entitled to
pension after his death in the light of the Rule 116 (16) (b) of the
Pension Rules which reads thus:
“116. Family Pension 1964:
(1) to (15)…..
(16) For the purpose of this rule­
(a) …..
(b) “Family”,   in   relation   to   a   Government   servant
means­ (i) wife in the case of a male Government servant, or
husband in the case of a female Government servant.
(ii) a   judicially   separated   wife   or   husband,   such
separation not being granted on the ground of adultery and
the   person   surviving   was   not   held   guilty   of   committing
adultery ;
(iii) son who has not attained the age of twenty one years
and unmarried daughter who has not attained the age of
twenty four years, including such son and daughter adopted
legally before retirement.”
9. The above rules are relevant and would determine the
entitlement of the person after death of the employee concerned.
In that view of the matter, I think the question framed by me is the
only relevant question which is required to be answered in the
negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.447/2002
Hoorbanoo wd/o Sk. Sardar,V  Shabnoorbee w/o Sk. Rashid,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 30.03.2016
Citation: 2017(2) ALLMR 204

Print Page

When second wife is not entitled to get family pension?

 In Sirazun Nessa (supra), a short but an important
question of law involved in the Writ Appeal was whether the
second wife of a Mohammedan employee was entitled to any
share in the family pension of her late husband. The issue being
answered in the negative by the learned Single Judge, the
petitioner had challenged the judgment and order in the Writ
Petition. In the brief facts, the appellant had married Tapadar
during the subsistence of his marriage with the respondent no.8.
He had eight children through the first wife and three through the
second wife. The appellant started living separately from her
husband since 1985 due to matrimonial discord and sought
maintenance and ultimately the case culminated in a compromise
when he agreed to pay maintenance to her as well their children.
It was pleaded in the petition that after the retirement from the
service he had submitted an application before the concerned
Department requesting the inclusion of her name as a nominee to
receive 50% pensionary benefits after his death.
22] In Smt. Sirazun Nessa (supra), he retired from the
service on 31.12.2003 and died on 1.10.2006 and thereafter the
appellant and the respondent no.8 had staked their claim for the
retiral benefits. It was contended on her behalf that as the
deceased was a Mohammedan by faith, he was permitted under
his Personal Law to marry the appellant even during the
subsistence of his marriage with the first wife and therefore she
was legally entitled to inherit the proportionate family pension.
Their Lordships considered Rule 143 (iii) vis-a-vis Rule 26(i) of
the Conduct Rules and found that under Rule 143 (i) there was no
indication of entitlement of the family pension by more than one
wife and in the Note appended to the Rule 143(ii) definitely
pointed out the consideration of the claim for the family pension
by two or more widows. At the same time, the Rule had not ruled
out taking into the consideration the valid marriage of two or
more wives by a Mohammedan employee. Their Lordships also
found that though the Conduct Rules had put certain preconditions
for contracting a second marriage, they did not totally
prohibit a second marriage provided it was permitted under the
personal law and custom of the concerned Government employee
and the only rider was to obtain permission from the19
Government. In the ultimate it was held that the petitioner was
entitled to a proportionate family pension. The judgment in Smt.
Sirazun Nessa (supra), is clearly distinguishable inasmuch as
unlike the petitioner therein, the petitioner in our case is
governed under the Family Laws applicable in the State where
there is a bar to the second marriage during the subsistence of
the first marriage. Hence, considering the law on the point vis-avis
the Pension Rules and the Family Laws applicable to the State,
the petitioner alone is entitled to the pension and accordingly she
is held entitled to a direction to quash and set aside the decision
of the respondent-authorities holding the respondent no.4 entitled
to a half share in the family pension. It goes without saying that
the petitioner alone is entitled to a writ to the respondents to pay
the petitioner each month the entire amount of the family
pension that is due and payable upon the demise of her late
husband.
 IN THE HIGH COURT OF BOMBAY AT GOA.
 WRIT PETITION NO. 767/2014

Mrs.Banu Shaikh V The State of Goa,

CORAM : F.M.REIS & NUTAN D.SARDESSAI, JJ

PRONOUNCED ON :24/08/2016
Citation: 2017(1) ALLMR875

Print Page

Whether minor children from second marriage are entitled to get family pension?

Now, when first order was cancelled by the State Government and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu Marriage Article 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void (heir children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned single Judge accordingly issued direction to the State Government, to issue fresh sanction order for payment of arrears of family pension and death cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules, It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.

IN THE SUPREME COURT OF INDIA

C.A. No. 605 of 2000 (Arising out of S.L.P. (C) No. 17636 of 1998)

Decided On: 27.01.2000

 Rameshwari Devi Vs. State of Bihar and others


Hon'ble Judges/Coram:

D.P. Wadhwa and S.N. Phukan, JJ.

Print Page

Whether family pension can be bequeathed by will?

Thus, the payment of pension is strictly governed by the service
rules   and,   therefore,   it   cannot   be   an   'estate'   disposable   by   will.
Though the Government employee has right to receive the pension, itcannot be treated as a 'property'.  On this point, I rely on the case of
Jodh Singh (supra).   In the said case, the officer bequeathed his
movable and immovable property to his father during his life time
and nominated his parents for the Provident Fund, as his relation
with his wife was not cordial.   The Hon'ble Supreme Court while
dealing with the issue held that the pension is a retirement benefit
and is not payable in the life time of the employee and what is not
payable during the life time of the deceased over which he has no
power of disposition and cannot form part of his estate.   It is the
event   of   his   death   that   provides   the   eligibility   qualification   for
claiming special family pension.
24. In the case of Sundariya Bai Choudhary (supra), the Division
Bench of Madhya Pradesh High Court has taken a similar view that
the pension of deceased cannot be said to be an estate and it is not
transferable   and   cannot   be   bequeathed   by   Will.     However,   other
pensionary   benefits   like   Provident   Fund,   Gratuity   etc.   and   other

retiral dues or extra renumeration would be estate of the deceased
and that can be bequeathed by him.
25. In the case of Violet (supra), the Hon'ble Supreme Court had an
opportunity to deal with Railway Family Pension Rules and held that
pension cannot be bequeathed by will since it is not a part of estate of
the employee but it is for monetary benefit of wife and children.
26. After going through the facts of the cases and law laid down
therein which are referred above, it is pertinent to note that in these
cases, husbands have disposed of the property by will to other family
members by denying the claim of the wife and, therefore, the Courts
have taken a view that wife has prime claim over the pension of the
husband and that cannot be denied.  In the present case, Jaydeo has
bequeathed his pension to his first wife only.  It is a settled position of
law that pension is not a estate and so it cannot be bequeathed by
will, so to that extent, i.e., the portion of bequeath of pension in
favour of Draupada is bad in law, however, the statements made in
the   will   about   the   status   of   Draupada   and   his   final   wish   that
Draupada alone has right over his pension corroborates a fact of valid

nomination of Draupada as a first wife.
27. Thus, it is held that pension is not a estate or property and
cannot be disposed of and to that extent, the portion in the will

regarding bequeath is against the law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015
Draupada @ Draupadi Jaydeo Pawar
and Others 
vs.
Indubai d/o. Kashinath Shivram Chavan
and Another 

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

Print Page

Whether second wife can claim family pension after death of husband?

The reasoning given by the Division Bench is consistent with the
other   provisions   of   law   as   mentioned   above   wherein   the   second
marriage   is   held   void.     The   Indian   legal   system   has   adopted
monogamy   as   a   legal   structure   of     the   marriage   institution   and,
therefore, occasional fractures of second marriage in subsistence of
first marriage are held void in law.   The second woman cannot be
given a status of  a legally wedded wife and, as rightly observed by
the Division bench, she is not a widow in true and legal sense.   A
wrong may exist in the Society on a large scale, however it cannot be
justified as a righteous custom because of its magnitude.  In order to

buttress this point, it will not be out of place to give example of give
and take of dowry which throws light on the wide gap between the
legality and the reality.  To take lenient view towards the wrong doers
is contrary to law laid down by the legislature.  Thus, gap should not
be widened by the decision of the Court but it is to be bridged. It is
mandatory for the Court to interpret a law which gives true effect to
the legislative intent.   The Division Bench in the case of  Chanda
Hinglas   Bharati  has   referred   to   the   relevant   provisions   under
different acts regarding the consequences of second marriage and the
status of second woman.  
38. It was argued by the learned counsel for the respondent that a
second wife was deceived by deceased husband and she begotten a
daughter from the deceased and therefore, it is necessary for the
Court to take a gender protectionist view and grant her pension. This
argument of the learned counsel for the respondent is one sided and
may appear convincing superficially, but it does not stand to reason
after close scrutiny.   The Courts have empathy for a woman who is
deceived by a man, however, she may take recourse under the other
enactments for redressal.  So far as husband is a Government servant

and matter is covered under the rules, then the Court cannot take
other view than permissible in law. The Division Bench in the case of
Chanda Hinglas Bharati has made a reference to similar argument
and has rightly observed that “showing sympathy to a woman like the
petitioner would result in depriving a legitimate wife of her right to
receive full family pension.  This is the gender positive view towards
the legally wedded wife.  The case of second wife may be unfortunate
but I am of the view that Court cannot pass verdict in her favour.
While doing justice, injustice should not be caused to a person having
a rightful claim. 
39. Thus, I fully rely on the ratio laid down in the case of Chanda
Hinglas Bharati and hold that marriage contracted with second lady
in subsistence of first marriage or spouse is living, then second lady
from   the   Hindu/Christians   cannot   claim   as   a   widow   entitled   to
pension   subject   to   personal   law   or   as   stated   in   Rule   26   of
Maharashtra Civil Services (Conduct) Rules.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015

Draupada @ Draupadi Jaydeo Pawar  vs.  Indubai d/o. Kashinath Shivram Chavan

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

Print Page

Whether parents of deceased government servant can be denied family pension?

In both of these Schemes the term 'family'
includes,   amongst   others,   the   mother   of   the
deceased Government  servant.   She  is entitled  to
get family pension in case she is wholly depending
on   the   deceased   Government   servant   for   support
and no other member of the family of the deceased
Government   servant,   who   is   vested   with   a   prior
right to  receive family  pension  than the  mother,

is surviving. However, 'mother' has been excluded
from   the   definition   of   'family'   in   the   Family
Pension Scheme, 1964 enumerated in Rule 116 of the
Pension Rules.
12. There   is   absolutely   no   rationale   or
justification behind excluding the mother from the
definition   of   'family'   in   the   Family   Pension
Scheme   1964.     The   mother   of   the   deceased
Government   servant,   who   is   otherwise   entitled   to
receive   family   pension   under   the   Family   Pension
Scheme   1950   (Rule   117)   or   under   Extra   Ordinary
Family   Pension   Scheme   (Appendix   IV),   thus,   has
been discriminated  by denying  her  the same  right
to   receive   family   pension   vide   Rule   116   of   the
Pension Rules.   In our view, this denial of right
to the  mother of  the deceased  Government  servant
to receive family pension under the Family Pension
Scheme   1964   (Rule   116)   amounts   to   discrimination
and as  such would  infringe  the fundamental  right
to   equality   as   enshrined   in   Article   14   of   the
Constitution of India.

13. Here   reference   may   be   made   to   the
Government   Resolution   No.PEN   2011/CR­54/Seva­4,
dated   22nd  January,   2015   published   by   the
Government   of   Maharashtra,   Finance   Department,
whereby mother of the deceased Government servant,
who is wholly dependent on him, has been held to
be entitled to get family pension if other family
members   of   the   deceased   Government   servant,   who
have a prior right to receive family pension, are
not   surviving.     This   Government   Resolution   has
been   made   applicable   to   the   employees   of   the
Maharashtra   Zilla   Parishads   vide   proviso   to
Section 248 of the Maharashtra Zilla Parishads and
Panchayat Samities Act, 1961.
14. In   the   'Introduction'   part   of   the   said
Government   Resolution   it   is   mentioned   that   since
the   definition   of   the   term   'family'   under   the
existing Pension Rules does not cover parents of a
Government   servant,   as   a   social   security   measure
the   scope   of   the   term   'family'   defined   under
Pension Rules has to be enlarged restrictively by

amending   the   Rules   suitably   to   include   into   its
ambit   the   wholly   dependent   parents   of   a   single
Government   servant.   In   clause   (11)   of   the   said
Government Resolution it has been mentioned that a
formal amendment to the Maharashtra Civil Services
(Pension) Rules, 1982 will be made in due course.
This Government Resolution fortifies our view that
there   was   no   rationale   or   justification   in
excluding   the   parents   of   the   deceased   Government
servant   from   the   term   'family'   as   given   in   the
Family   Pension   Scheme   1964   (Section   116).
Therefore,   the   decision   of   the   respondents   in
denying family  pension to  the  petitioner, who  is
the   only   surviving   family   member   of   deceased
Deelip,   who   is   stated   to   be   wholly   dependent   on
him   for   livelihood,   is   not   sustainable   since   it
has   the   effect   of   discriminating   the   petitioner
and   depriving   her   of   the   fundamental   right   to
equality   as   enshrined   in   Article   14   of   the
Constitution of India. 

15. In   the   above   circumstances,   the
respondents will have to be directed to reconsider
the   case   of   the   petitioner   for   grant   of   family
pension   under   Rule   116   of   the   Pension   Rules   of
1982 considering the object of the Pension Scheme,
1964.     The   respondents   should   take   liberal
approach and should not turn down the request of
the   petitioner   for   grant   of   family   pension   on
technical grounds. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 1884 OF 2012
Smt. Vimalbai Supdu Patil,

        
     V
The State of Maharashtra,

     CORAM : S.S.SHINDE
   AND
      SANGITRAO S.PATIL, JJ.
    
     DATED        : 24.6.2016
Citation: 2016(6) MHLJ 191

Print Page

Whether employee can dispose of family pension by way of will?

 It is pertinent to note that in this case the pension is
to be given under the provisions of the Scheme and
therefore, only the person who is entitled to get the pension
as per the Scheme would get it. Similar issue had arisen
before this Court in the case of Violet Issaac (Smt.) v.
Union of India (1991) 1 SCC 725 and after considering
the relevant provisions, this Court came to the conclusion
that family pension does not form part of the estate of the
deceased and therefore, even an employee has no right to
dispose of the same in his Will by giving a direction that
someone other than the one who is entitled to it, should begiven the same. In the instant case, as per the provisions of
the Scheme, the appellant widow is the only family member
who is entitled to the pension and therefore, the respondent

mother would not get any right in the pension.

 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9823 OF 2016
(Arising out of S. L. P. (C) No.21187 of 2015)
NITU 
VERSUS
SHEELA RANI & ORS. …
Dated:SEPTEMBER 28, 2016.

Print Page

When mother will not get family pension of deceased married son?

It is pertinent to note that in this case the pension is
to be given under the provisions of the Scheme and
therefore, only the person who is entitled to get the pension
as per the Scheme would get it. Similar issue had arisen
before this Court in the case of Violet Issaac (Smt.) v.
Union of India (1991) 1 SCC 725 and after considering
the relevant provisions, this Court came to the conclusion
that family pension does not form part of the estate of the
deceased and therefore, even an employee has no right to
dispose of the same in his Will by giving a direction that
someone other than the one who is entitled to it, should be
given the same. In the instant case, as per the provisions of
the Scheme, the appellant widow is the only family member
who is entitled to the pension and therefore, the respondent
mother would not get any right in the pension. 
 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9823 OF 2016

NITU  Vs SHEELA RANI & ORS. …

Dated:SEPTEMBER 28, 2016.
Citation: 2016 SCCONLINESC 1004,AIR 2016 SC4552

Print Page

Whether husband is entitled to get family pension even though there is no nomination in his favour?

The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased Government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.

SUPREME COURT OF INDIA
Dated :  23.4.1999.

G.L. Bhatia  v. Union of India & anr
Citations  : 1999(5) SCC 237, 1999 SCC (L&S) 996,  1999(3) LLN 835,  2001(1) All. C.J. 840,  1999(9) Supreme 308
Before :- G.B. Pattanaik and Umesh C. Banerjee, JJ.

Print Page

Whether nomination is necessary for family pension?

 With regard to grant of family pension nomination is not necessary it has also been held by the Hon'ble Supreme Court in the case reported in G.L. Bhatia v. Union of India and Anr. . After considering Rule 54 of the Central Civil Service (Pension) Rules as under:

"2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased Government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the Rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the Rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.

Madhya Pradesh High Court

Smt. Girijabai vs State Of M.P. And Ors. on 8 April, 2008

Equivalent citations: 2008 (3) MPHT 83

Bench: S Gangele

Print Page

Whether family pension which is payable of heirs of deceased can be deducted from compensation granted by MACT?

The learned M.A.C.T. has held that the monthly income

of the deceased was ` 15,058/-. As already stated earlier, If the

income by way of pension was 50% of the last drawn salary

which was ` 22,260/- it had to be ` 11,130/- and not ` 10,058/- as

held by the learned M.A.C.T. Adding further income of ` 5,750/-

earned out of tuition, the total income becomes ` 16,880/-. The

contention of the learned Counsel appearing for the respondents

to the effect that the family of the deceased would be getting

family pension after the death of the deceased and, therefore,

the said family pension amount had to be deducted from the total

income, has no force at all. In the case of “Lal Dei and others”

(supra), the Hon'ble Supreme Court has held that the Motor

Accident Claims Tribunal as well as the High Court could not have

deducted the amount of family pension given to the family while

calculating dependency of the claimants. The Apex Court

referred to the case of “Helan C. Rebello Vs. Maharashtra

S.R.T.C.”, [1998 (3) Mh. L. J. (SC) 674] : [1999(1) SC 90], wherein

the Apex Court had specifically dealt with the said question and

had observed that the family pension is earning of an employee

for the benefit of his family in the form of his contribution in the

service in terms of the service conditions receivable by the heirs

after his death. It was observed that the heirs receive family

pension even otherwise than the accidental death and there is no

co-relation between the two and, therefore, the family pension

amount paid to the family cannot be deducted while claiming the

compensation awarded to the claimants. Therefore, the learned

M.A.C.T. cannot be said to have committed any error by not

deducting the family pension amount.

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO. 119 of 2009

 Shri Vezic D'Costa alias Vajic D'Costa, Vs Shri Manuelino Fernandes Sales,

CORAM :- U. V. BAKRE, J.

 Pronounced on : 16th December, 2014.

Citation: 2016 (3) ALLMR775

Print Page