IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1857 of 2009 (O&M) Date of Decision: 4.5.2009 State of Haryana and others. ....... Appellants through Shri O.P.Sharma, Addl.Advocate General, Haryana. Versus Smt.Krishna Devi. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 26.2.2008 and 10.10.2008 passed respectively by the Civil Judge (Senior Division), Rewari (hereinafter described as `the trial Court') and the Additional District Judge, Rewari (referred to hereinafter as `the First Appellate Court') vide which the suit of the plaintiff-respondent was decreed and the appeal of the defendants-appellants was dismissed. The respondent had filed a suit for declaration with consequential relief and prayed that order of appellant no.2 which was conveyed to her on 4.11.2004 regarding withdrawal of family pension be declared as illegal, null & void and arbitrary and she be held entitled for restoration of her family pension from the date it was withdrawn along with R.S.A.No.1857 of 2009 (O&M) -2- .... arrears and interest at the rate of 24% per annum. It was pleaded in the suit that the respondent was granted family pension on account of the death of her husband- Rajesh Kumar, who was working in the Haryana Police and had expired on 6.10.1981 during service. It was further pleaded that the family pension was disbursed to her up to January,2003,but the same was arbitrarily withheld on the ground that a complaint had been made that after the death of Rajesh Kumar, she was living with one Manu Dev, the real brother of her husband by performing kareva marriage. It was averred that as per law, she was entitled to get family pension even after performing kareva marriage with the real brother of her deceased husband and the same has been wrongly withheld. The appellants., upon notice, put in appearance. Appellant nos. 1 and 3, in their written statement, contested the suit of the respondent. It was averred that the respondent was not disbursed family pension since February,2003 as she had entered into marriage with the brother of Rajesh Kumar and re-marriage is not recognised as a valid marriage and, therefore, she was not entitled to any sort of pension according to rules and regulations. It was categorically pleaded that after re-marriage, the family pension cannot be granted to the respondent. In his separate written statement, respondent no.2 pleaded that on receipt of family pension papers from the department, the family pension at the rate of Rs.125/- per month was granted to the respondent w.e.f. 7.10.1981. It was further pleaded that one Munshi Ram son oif Hira Singh had made a complaint vide letter dated 25.5.2002 to the office that the R.S.A.No.1857 of 2009 (O&M) -3- .... respondent was living with Shri Manu dev and two children have been born out of this wedlock. It was averred that because of the re-marriage, the respondent was disentitled to family pension. The parties went to trial on the following issues:- 1.Whether the plaintiff is entitled for declaration with consequential relief as prayed for? 2. Whether the plaintiff has no cause of action to file the present suit?OPD 3. Whether the plaintiff is estopped by her own act and conduct to file the present suit?OPD 4. Relief. After appraisal of the entire evidence on record and relying on the judgments reported as Kiran Kumar Versus State of Haryana and others, 2003(3) R.S.J. 283 and Daljit Kaur Versus Union of India and others, 2007 (1) R.S.J. 231, the trial Court decreed the suit of the respondent. On appeal, the findings of the trial Court were affirmed by the First Appellate Court while making reference to law laid down in the above mentioned judgments, also in R.S.Randhawa versus Stateof Punjab and others, 1997(3) R.S.J. 318 and Vijay L.Malhotra Versus State of U.P., 2000 (2) R.S.J. 647. This has resulted in filing of the instant regular Second Appeal which has been preferred with a delay of 112 days and condonation of which has been prayed for by moving C.M.No.5464-C of 2009. Learned counsel for the appellants has contended that the delay R.S.A.No.1857 of 2009 (O&M) -4- .... in filing the appeal is unintentional and has occurred because of the reason that it took time to obtain the legal opinion. On merits, it was submitted that in view of the fact that the respondent had re-married, she could not be granted family pension. It was further submitted that this is against the rules which prohibit the grant of family pension once a widow remarries. After hearing the learned counsel for the appellants and perusing the impugned judgments, I am of the opinion that the matter has been conclusively settled by the judgments which have been referred to by the Courts below while deciding the case. In so far as the application for condonation of delay is concerned, I am satisfied with the explanation given by the appellants as the delay is mainly attributable to the official procedure which has occurred in their various offices. Therefore, the application is accepted and the delay in filing the appeal is condoned. In Kiran Kumar's case (supra), a Division Bench of this Court held as under:- “5. Firstly, there is no rule which prohibits grant of family pension to the widow of the deceased who has remarried and particularly in the same family. The object of the rule is not to deny benefit of family pension to the dependent of the deceased, but, obviously provides an exception to that concept by postulating a situation where the widow remarried independently and her economic dependence upon the deceased is disintegrated from the need of the family. In the present case, both such situations exist. Admittedly, the daughter of the R.S.A.No.1857 of 2009 (O&M) -5- .... deceased is living with the petitioner, who has remarried with the younger brother of the deceased. The economic dependence of the family, thus, continues in its entirety and ingredient of an exception seems to be satisfied in the present case. 6. Furthermore, we may refer to judgment of this Court in the case of Kamaljit Kaur Versus Union of India and others, 1997 (3) P.L.R. 44, wherein the Court while dealing with the regulations 216 and 219 of the Service Pension and Gratuity regulations is somewhat similar circumstances granted relief to the petitioner and held as under:- “Petitioner, widow of Malkit Singh, married with the brother of the deceased. This fact is admitted in the written statement. In such a situation the relevant Rule that applies to the case in hand in Rule 219 of Section 2 of Service Pension and Gratuity. That Rule states that “A relative specified in regulation 216 shall be eligible for the grant of family pension. Widow is one mentioned in Regulation 216. Thus, it is beyond controversy that widow is entitled to pension under Rule 219. That Rule further states that if the widow remarries her deceased husband's brother and continues to live a common life with and/ or contributes to the support of the other living eligible heirs she continues to be entitled to family pension. In this case petitioner remarried deceased's R.S.A.No.1857 of 2009 (O&M) -6- .... direct brother. She is maintaining the son born to her through the deceased, thus, petitioner continues to have a right to get the family pension. That family pension was denied to her from May,1994. The said action on the part of the respondents was illegal. So, respondents are directed to pay the entire arrears of pension to the petitioner within a month from today. If the entire arrears are not paid within one month, as stated above, that entire arrears will carry interest at the rate of 12% p.a. From the date of the expiry of one month till the date of actual payment. We direct the respondents to continue to disburse the family pension due to petitioner regularly month by month. Petition is allowed as indicated above. Since respondents have raised all cantankerous contentions in the written statement filed in this case, we feel that it is a fit case where they are to be mulcted with costs. Respondents are directed to pay the costs of the petition including Advocate's fee of Rs.2000/-.” In Daljit Kaur's case (supra), this Court again reiterated the above reproduced view. Concededly, the respondent has remarried with the brother of her deceased-husband and is living in the same family. Therefore, the law laid down in the above mentioned cases is squarely applicable to the facts of R.S.A.No.1857 of 2009 (O&M) -7- .... the instant case. Accordingly, the question of law which has been framed by the appellants in the grounds of appeal and which is reproduced below, stands answered against them and in favour of the respondent:- “Whether the deceased husband's wife is entitled to family pension even after she has contracted second marriage?” The impugned judgments and decrees are, therefore, upheld and the appeal is dismissed being without any merit. May 04,2009 ( Mahesh Grover ) “SCM” Judge