IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 19671 of 2007(P) -------------------------------------- PETITIONER: ------------------- G.PRASANNA KUMARI, AGED 64 YEARS, W/O.LATE M.ACHUTHAN PILLAI, ACHUTHALAYAM HOUSE, VARUVILA P.O., KARUNAGAPPALLY, KOLLAM, (ACHUTHAN PILLAI, SEPOY NO.2558078, MADRAS REGIMENT, P.P.O.NO.S/C/20677/83). BY ADV. SRI.K.K.RAJEEV. RESPONDENTS: ----------------------- 1. THE SECRETARY, UNION OF INDIA, MINISTRY OF DEFENCE, NEW DELHI - 11. 2. CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI - 11. 3. DDG DSC, ARMY HEAD QUARTERS, NEW DELHI - 11. 4. PCDA (P), OFFICE OF THE PCDA(P), G4/VI SECTION ALLAHABAD, U.P.211014. 5. CHIEF RECORD OFFICER, DSC RECORDS, CANNORE - 670013. BY ADV.SRI.ABRAHAM THOMAS, CGC, - R1 TO R5. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19671/2007-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: APPLICATION FOR FAMILY PENSION FORWARDED BY ACHUTHAN PILLAI. EXT.P.2: MARRIAGE CERTIFICATE ISSUED BY THE SECRETARY OCHIRA PRABRAHMA TEMPLE ADMINISTRATION COMMITTEE DTD. 15/01/2004. EXT.P.3: RESIDENCE CERTIFICATE ISSUED FROM THE CLAPPANA GRAMA PANCHAYATH DTD. 20/03/2004. EXT.P.4: NATIVITY CERTIFICATE ISSUED BY THE VILLAGE OFFICER, CLAPPANA DTD. 1/08/2002. EXT.P.5: DEATH CERTIFICATE OF SRI. ACHUTHAN PILLAI ISSUED BY THE CORPORATION OF COCHIN DTD. 30/10/2002. EXT.P.6: CERTIFICATE ISSUED FROM THE OFFICE OF THE CLAPPANA GRAMA PANCHAYATH DTD. 07/06/2003. EXT.P.7: REPRESENTATION DTD. 11/11/2004. EXT.P.8: LETTER DTD. 13/01/2005 ISSUED FROM THE OFFICE OF THE R.5. EXT.P.9: REPRESENTATION DTD. 10/04/2007. EXT.P.10: COPY OF THE ENGLISH TRANSLATION OF THE DIVORCE DEED DULY ATTESTED BY THE NOTARY. EXT.P.11: COPY OF THE LETTER DTD. 31/05/2004 FORWARDED BY THE R.5. EXT.P.12: COPY OF THE DEATH CERTIFICATE ISSUED FROM THE BHARANIKKAVU GRAMA PANCHAYATH IS PRODUCED HEREWITH. EXT.P.13: COPY OF THE LETTER ISSUED BY THE R.5. DTD. 03/05/2005. EXT.P.14: COPY OF THE REPORT SUBMITTED BY THE TAHSILDAR, MAVELIKKARA. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LETTER DTD. 19/20-08-2005. EXT.R1.B: COPY OF THE LETTER NO.G 4/7/04/6402/VI/712 DTD. 01/09/2004. //TRUE COPY// prv. V. GIRI, J. ------------------------------- WP(C).NO. 19671 of 2007 --------------------------------- Dated this the 12th day of June, 2008 JUDGMENT The petitioner is a widow of late Achuthan Pillai who was working as Sepoy in the Madras Regiment. Achuthan Pillai had applied for family pension in terms of the Family Pension Rules during his life time as evidenced by Ext.P1. Ext.P1 shows that the petitioner, one Maya and one Abhilash were persons eligible for family pension. Apparently, Achuthan Pillai had earlier married one Lalithamma. That ended in a divorce as evidenced by Ext.P10 registered document produced by the petitioner along with the reply affidavit. Ext.P10 would show that a copy of the registered document No.15/74 of the Bharanikkavu Sub Registry along with its English translation was produced by the petitioner before the Records Officer, the 4th respondent. But the petitioner's claim was rejected under Ext.P8 on the premise that there is nothing to show that there was a valid divorce between the petitioner's late husband and his first wife Lalithamma. Consequently the petitioner cannot be considered as a legally WPC. 19671/2007 2 wedded wife of Achuthan Pillai. This has been challenged in this writ petition. 2. A counter affidavit has been filed by the respondents essentially contending that the claim made by the petitioner that there was a valid divorce between Achuthan Pillai and Lalithamma would not be substantiated by the petitioner with reference to any decree for dissolution by a competent court. With regard to Ext.P10 registered document No.15/74 of the Sub Registrar's Office, Bharanikavu, the stand taken by the respondents is that divorce was not obtained through court decree. Therefore the said divorce cannot be accepted as legally valid. 3. I heard learned counsel for the petitioner and the learned counsel for respondents. The respondents have rejected the petitioner's claim for family pension on the premise that there is no document which clearly evidences a valid divorce between Achuthan Pillai and Lalithamma. Registered document No.15/74 of the Bharanikavu Sub Registrar's office was not accepted on the premise that a valid dissolution of marriage can only be by the intervention of the court. This stand taken by the respondents WPC. 19671/2007 3 would normally be correct but one aspect was apparently not brought to the notice of the respondents. I would have normally remitted the matter for reconsideration in such circumstances. But I note of the fact that the petitioner is a senior citizen aged 65 and she is battling for family pension for several years. Further it seems to be admitted that there is no serious rival claimant as such for the family pension. As per Rule 64 of the CCS (Pension) Rules a major son and daughter are not entitled to receive family pension. If there is material to show that there was a valid divorce between Achuthan Pillai and Lalithamma, then the petitioner as a lawfully wedded wife of Achuthan Pillai is entitled to receive family pension. In the circumstances, I propose to consider this aspect. 4. As I mentioned above, the view taken by the respondents that a valid divorce among Hindus will have to be evidenced by a decree for dissolution by the court would normally be accepted as correct. But there was one aspect which was not brought to the notice of the respondents viz. the provisions of Travancore Nair Act 1100. Section 4 of the Act reads as follows:- WPC. 19671/2007 4 “ A marriage may be dissolved only in one of the following ways, that is to say, - Dissolution of marriage. - (i) by the death of either party; or (ii) by mutual consent evidenced by a registered instrument; or (iii) by a formal order of dissolution as hereinafter provided. 5. Therefore, the marriage between two Travancore Nairs could have been validly dissolved by a registered instrument. This right available under the Travancore Nair Act was kept in tact under section 29(2) of the Hindu Marriage Act. The judgment of the full bench of this court in Krishna Pillai vs. Subhadra Amma (1970 KLT 442) and a Division Bench of this court in Madhavikutty vs. Bhasker (AIR 1976 Kerala 71) would show that a dissolution of marriage by a registered instrument was a valid mode for dissolution among Nairs. If that be so, document No.15/74 evidences a valid dissolution of marriage. Consequently, the marriage between Achuthan Pillai and the petitioner was a valid marriage. It was all along the WPC. 19671/2007 5 case of the petitioner that the marriage between Achuthan Pillai and the petitioner was a customary marriage that took place in the year 1974. The certificate Ext.P2 issued by the Secretary of the Temple Administration Board, Oachira shows that the said marriage was solemnised on 11.7.1974. There is no dispute that Achuthan Pillai had included the petitioner's name as wife in the application submitted for family pension. There is no serious dispute regarding the factum of marriage between Achuthan Pillai and the petitioner . For all these reasons, the refusal on the part of the respondents to disburse to the petitioner the family pension as a wife of late Achuthan Pillai is not justified. The writ petition is allowed. Ext.P8 is quashed. The 4th respondent shall take steps to disburse to the petitioner the family pension due to her in terms of CCS (Pension) Rules with arrears from the date of eligibility within three months from the date of receipt of a copy of this judgment. V. GIRI, JUDGE. pmn/ WPC. 19671/2007 6