IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 12346 of 2008. Decided on 14.06.2011. _____________________________________________________ Bimla Kapila. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Onkar Jairath, Advocate. For respondents No. 1 to 3. : Mr. Anil Jaswal, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 4. : Ms. Anita Dogra, Advocate vice Mr. Vijay Arora, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner claims that her husband was working in the Police Department as Constable. He retired on 31.12.1993. He was granted pension on 14.11.1994. He died on 06.01.1997. Thereafter, petitioner made a representation to respondent No. 4 for the release of family pension on 14.03.1997. The same was rejected on 11.09.1997. 2. Mr. Onkar Jairath, learned counsel for the petitioner has strenuously argued that the action of the respondents not to grant family pension to his client is illegal, arbitrary and, thus, violative of Article 14 of the Constitution of India. The then argued that his client was the legally wedded 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - wife of late Shri Gian Chand and was entitled to family pension after the death of Gian Chand on 06.01.1997. 3. Mr. Anil Jaswal, learned Deputy Advocate General and Ms. Anita Dogra, learned vice counsel, appearing on behalf of respondents No. 1 to 4, have strenuously argued that the petitioner was not entitled to family pension. According to them, petitioner could not contract marriage with Gian Chand till Smt. Amriti Devi was alive, i.e., 01.11.1984. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is not disputed that late Shri Gian Chand was working in Police Department and he died on 06.01.1997 and pension was sanctioned to him on 14.11.1994. According to the petitioner, one Smt. Amriti Devi was the first wife of Gian Chand. The marriage between Smt. Amriti Devi and Gian Chand was dissolved by way of customary divorce before the Panchayat on 29.11.1968 and thereafter the marriage was solemnized between Gian Chand and petitioner on 08.12.1968. 6. Mr. Onkar Jairath, learned counsel for the petitioner has also referred to Annexures A-1 and A-3. According to Annexure A-3, petitioner has been shown as wife of Gian Chand. Mr. Onkar Jairath has also relied upon copy of Will dated 24.12.1996. The representation made by the petitioner on 14.03.1997 was rejected by the respondent No. 4 on 11.09.1997. The ground taken while rejecting the case of petitioner is that till first wife of Gian Chand Smt. Amriti Devi was alive, i.e. 01.11.1984, petitioner could not solemnize the marriage with him. Mr. Onkar Jairath has strenuously argued that earlier - 3 - marriage between Gian Chand and Smt. Amriti Devi was dissolved on the basis of customary divorce before the Panchayat. Petitioner has not placed any tangible evidence to establish that divorce could be obtained before the Panchayat in the area to which the petitioner belongs. Since the petitioner has not proved that this custom was prevailing in the area, in these circumstances, the marriage between Gian Chand and Smt. Amriti Devi could only be dissolved under Section 13 of the Hindu Marriage Act, 1955. In Character-roll, name of Smt. Amriti Devi has been mentioned. As per the contents of the reply, in the nomination for death and retirement gratuity, name of petitioner has been entered. In order to claim family pension, it was necessary for the petitioner to establish conclusively that she was legally wedded wife of Gian Chand. Respondent No. 4 has sanctioned pension in favour of the children of the petitioner on 16.04.1998. 7. It is settled law by now that pensionary benefits cannot be bequeathed by way of Will. Their Lordships of the Hon’ble Supreme Court in Smt. Violet Issaac and others versus Union of India and others, (1991) 1 SCC 725 have held 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 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 - 4 - 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. We, accordingly hold that Mrs Violet Issac the widow of the deceased Railway employee is entitled - 5 - 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.” 8. Since the petitioner has failed to prove that she was legally wedded wife of Gian Chand, she could not be granted family pension. The Will Annexure A-5 is also not registered. 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge June 14, 2011. (bhupender) - 6 - `