IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 12178 of 2008. Reserved on: 23.11.2010. Decided on: 07.01.2011. _____________________________________________________ Satya Devi. … Petitioner. Versus State of H.P. and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Ms. Pratima Malhotra, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.1 to 2. Respondent No.3 ex-parte. Mr. Karan Singh Kanwar, Advocate for respondent No.4. Rajiv Sharma, J. Petitioner claims herself to be the wife of one Shri Munshi Ram, who was working in the office of Block Development Officer, Shillai, District Sirmour. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. The case of the petitioner, in a nutshell, is that she is the legally wedded wife of late Shri Munshi Ram and is entitled to the family pension and other retiral benefits. According to the petitioner, respondent No.4 is not the legally wedded wife of Shri Munshi Ram. 3. Ms. Pratima Malhotra, learned counsel for the petitioner has strenuously argued that her client is legally wedded wife of late Shri Munshi Ram. According to her, respondent No.4 is not the wife of Shri Munshi Ram and, is thus, not entitled to family pension and retiral benefits. 4. Mr. P.M. Negi, learned Deputy Advocate General with Mr. R.P. Singh, learned Assistant Advocate General and Mr. Karan Singh Kanwar, Advocate have strenuously argued that respondent No.4 is the legally wedded wife of late Shri Munshi Ram and petitioner has no concern whatsoever with late Shri Munshi Ram. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Shri Munshi Ram has retired on 30th June, 1996. In the pension papers, the name of respondent No.4 has been mentioned. The pension was released in favour of Munshi Ram on 30.10.1997 which was revised on 9.6.1999. Munshi Ram has died on 25.2.2001. Petitioner has not placed any admissible evidence on record to prove that she was legally wedded wife of Shri Munshi Ram. Petitioner has only relied upon Pariwar Register and copy of alleged Will, dated 20th January, 2001. Munshi Ram has died on - 3 - 25.2.2001 and the present petition has been filed on 5.9.2005. Petitioner has not explained the delay in filing this petition. Petitioner was earlier married with one Shri Sant Ram. Ms. Pratima Malhotra, learned counsel for the petitioner has strenuously argued that her client has divorced Shri Sant Ram according to local custom. However, the petitioner has not placed on record any order/judgment passed by the competent court of law dissolving her marriage with Shri Sant Ram. She has only relied upon X-1 and X-2. 7. In the reply filed by respondent No.3, it is averred that in all the pension papers including Form-B, name of respondent No.4 has been designated/nominated. In voters’ list prepared vide Annexures R-4/D and R-4/E, i.e. copy of Pariwar register, respondent No.4 has been entered as wife of Shri Munshi Ram. 8. Ms. Pratima Malhotra, learned counsel for the petitioner has also argued that as per Will late Shri Munshi Ram has bequeathed the entire moveable and immoveable property in favour of her client including pensionary benefits. 9. It is well settled by their Lordships of Hon’ble Supreme Court in Smt. Violet Issaac and others versus Union of India and others, (1991) 1 SCC 725 that no will can be executed qua pensionary benefits. Their Lordships have held as under (paras 4 and 6): “The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this court while issuing notice to the - 4 - respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules, 1964 provide for the sanction of family pension to the survivors of a Railway employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier. The Rules do not provide for payment of family pension to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his lifetime for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. - 5 - We, accordingly hold that Mrs Violet Issac the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased on September 9, 1984 in favour of his brother Elic Alfred. As regards appellants 2 to 6 are concerned, it has been stated on behalf of the Railway administration that they are not minors, therefore; under the Rules they are not entitled to any family pension. We, accordingly allow the appeal, set aside the order of the tribunal and direct the respondent Railway administration to sanction family pension in accordance with the Rules to appellant 1 and to pay the arrears within two months. The respondent's suit, so far as it relates to the family pension cannot proceed but we do not express any opinion with regard to other claims raised therein.” 10. Their Lordships of Hon’ble Supreme Court have also held that the marriage cannot be dissolved according to custom etc. The petitioner has not proved on record the dissolution of her marriage according to the process of law. Their Lordships of Hon’ble Supreme Court in Mahendra Nath Yadav versus Sheela Devi, (2010) 9 SCC 484 have held as under (para 7): “The High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the 1955 Act. We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7-6-1997, he would not have filed a petition under Section 13 of the 1955 Act. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal. In view of - 6 - the above, we do not see any reason to interfere with the well reasoned judgment of the High Court.” 11. Accordingly, in view of the observations made hereinabove, the petitioner has failed to prove that she is the legally wedded wife of Shri Munshi Ram and thus entitled to pensionary benefits. Consequently, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. January 07, 2011. (sck).