RSA No. 2001 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2001 of 2005 Decided on : 12 -05-2009 Dilbagh Singh Sandhu and others ....Appellants VERSUS Punjab State through Secretary Planning, Govt. of Punjab, Chandigarh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr .Ranjit Sharma, Advocate for the appellants. Mr. N.S.Virk, Addl. A.G., Punjab Mr. R.S.Auli, Advocate for respondent no.3. MAHESH GROVER, J This is plaintiffs' second appeal directed against the judgments of the learned Trial Court dated 6.5.2004 and that of the learned First Appellate Court dated 16.4.2005 by which their suit for declaration and mandatory injunction and appeal were dismissed. Briefly stated the facts of the case are that the appellants filed a suit for declaration that appellant no.1 was entitled to pensionary benefits etc of deceased Kuldip Kaur who was his wife and was working as Assistant Research Officer and died on 27.7.1999. It was pleaded that he alongwith two children are legal heirs of the deceased employee and were entitled to the said pensionary benefits according to family pension rules. A prayer for mandatory injunction was also made seeking directions to the respondent nos. 1 and 2 the department where the deceased was working not to grant the said benefits to respondent no.3 – Harinder Kaur who is the mother of the deceased. RSA No. 2001 of 2005 2 Respondent no.3-Harinder Kaur stated in her written statement that there was litigation between the appellant no.1- Dilbagh Singh Sandhu and deceased Kuldip Kaur as they were not having cordial relations with each other. Dilbagh Singh had also filed a petition under Section 9 of the Hindu Marriage Act which was dismissed by holding that Kuldip Kaur was having a valid reason to withdraw herself from the society of her husband- appellant no.1 as he was having illicit relations with another woman namely Amarjit Kaur. Kuldip Kaur died because of a terminal illness and there was no one to look after her and it was respondent no.3 who looked after her during her illness. Accordingly, Kuldip Kaur had executed a Will bequeathing all her movable and immovable properties in favour of respondent no.3 her mother. It was stated that she was extremely disturbed due to behaviour of appellant no. 1 and changed her nomination in her pension papers by inserting the name of respondent no.3 instead of appellant no.1. Respondent no.1 and 2 also contested the suit and pleaded that Smt. Kuldip Kaur died on 27.7.1999 while she was in service and payments of GPF and GIS were made on the basis of nomination papers filed by the employee concerned and whatever other benefits are there would be payable to the legal heirs of deceased as per the Govt instructions. It was also stated that relationship between the appellant no.1 and deceased were not cordial and she has also submitted a copy of the judgment to the department. Parties went to trial on the following issues:- 1. Whether the plaintiffs are entitled to get pensionary benefits viz family pension, gratuity, G.P.Fund and leave encashment of being the L.Rs of deceased Kuldip Kaur, Assistant RSA No. 2001 of 2005 3 Research Officer? OPP. 2. Whether the plaintiffs are entitled to pay interest if so and on what rate ?OPP 3. Whether the plaintiff is entitled to Mandatory injunction? OPP 4. Relief Both the Courts concluded that the Will had been validly executed in favour of respondent no.3-Harinder Kaur and that the appellant no.1 having strained relations with the deceased was not entitled to the benefits as prayed for and the suit was dismissed. This has resulted in filing of the present regular second appeal. It was contended by the learned counsel for the appellants that the findings recorded by both the Courts below are erroneous and contrary to law. It was contended that there was no judicial separation and divorce and consequently, the marriage was subsisting. In this view of the matter and considering the provisions of the family pension scheme the benefits could not have been denied to them. He referred to Clause 3 of Rule 6.17 wherein family has been described as under:- Rule 6.17 (3) “Family” for the purposes of this Scheme will include the following relatives of the Government employee:- (a) wife in the case of a male Government employee and husband in the case of a female Government employee; (b) a judicially separated wife or husband, such RSA No. 2001 of 2005 4 separation not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the person surviving was not held guilty of committing adultery; and (c ) sons up to the age of twenty five years (d) unmarried daughters upto the age of twenty five years.” He thus contended that under no circumstances can the appellants be deprived of the benefits. He also placed reliance on cases reported as JT 1995(9) SC 631 titled as 'Haryana State Electricity Board vs. Surasti Devi' and 2000(1) Apex Court Journal 13 (SC) titled as 'G.L.Bhatia vs. Union of India & Anr.'. On the other hand, learned counsel for the respondents contended that in view of the categoric findings recorded by the Court of competent jurisdiction while dealing with the petition under Section 9 of the Hindu Marriage Act appellant no.1 was clearly found to be living with some other woman during the subsistence of marriage and was guilty of having committed adultery and therefore he was not covered under the definition of the scheme and the clause which was relied upon by the learned counsel for the appellants. He also contended that according to the provisions of the Hindu Succession Act, the deceased was clearly within her rights to Will away her property both movable and immovable and the provisions of the scheme could not defeat her statutory right to bequeath her property to anyone she wishes to. I have heard learned counsel for the parties and have perused the impugned judgments and record. RSA No. 2001 of 2005 5 Ex.DW4/8 is the judgment rendered in the petition under Section 9 of the Hindu Marriage Act initiated at the behest of the appellant no.1. Therein the deceased Kuldip Kaur who was contesting the petition categorically pleaded that the appellant no.1 was living with one Amarjit Kaur and had married her and one child was also born out of that wedlock and this was the reason for the marital discord. The Court thereafter went on to record a specific finding to that effect. She has also initiated criminal proceedings against him under the provisions of Section 494, 420 IPC. She has further established before the Court that the appellant no.1 had sold 16 kanals of land in favour of Amarjit Kaur and the certified copy of the same was also produced on record. On the basis of this evidence, the Court recorded a categoric finding to the following effect:- “as discussed above there is sufficient evidence on the file to show that the petitioner has been living with another wife/woman which in my opinion is a reasonable excuse for her to refuse the society of the petitioner/husband.” Therefore, this was a reasonable ground for her to withdraw from the society of her husband. The petition under Section 9 was thus dismissed. It is in this backdrop that the question of the depriving of the nomination under the family pension scheme to the appellants is to be seen. The rule which has been relied upon by the learned counsel for the appellants notices that the word family is to include a judicially separated wife or husband provided it is not granted on the ground of adultery and the marriage took place before the retirement of the Government employee and the person surviving was not held guilty of committing adultery. Clearly, a person who has been found to be living in adultery or convicted of adultery RSA No. 2001 of 2005 6 having obtained judicial separation on account of adultery dis-entitles himself to fall within the ambit of the word family so as to be able to derive the benefits of the scheme. If the facts of the instant case are to be seen it is apparent that the appellant no.1 was living in adultery and the judicial findings to that effect are an affirmative pronouncement on this aspect. Even though the separation may not have assumed the legal overtones of a judicial separation and the conviction of the basis of adultery may not even specifically recorded yet a clear cut finding has still been returned by a Court of competent jurisdiction that the appellant no.1 was living in adultery. Therefore, the Court cannot grant a very strict interpretation to the aforesaid rule to say that only in cases of judicial separation and conviction would such a rule be applicable so as to remove the incumbent from the ambit of the word family as described in Rule 6.17 but in other circumstances also where a judicial finding has been returned that the person was living in adultery, the provisions of such rule would be attracted so as to dis-entitle such a person from the benefits of the scheme. I am, therefore, of the considered opinion that since the appellant no.1 was living with another woman during the subsistence of his marriage which finding was returned by the Court of competent jurisdiction while answering the petition under Section 9 he was clearly living in adultery and therefore was not entitled to the benefits of scheme under Rule 6.17 and cannot be considered to be member of the family for the purposes of the benefits of the scheme. Besides Section 14 of the Hindu Succession Act clearly recognizes the right of a Hindu female to own and possess property which RSA No. 2001 of 2005 7 she may have acquired by any means including her own skill. Section 14 is reproduced hereunder:- “14. Property of a female Hindu to be her absolute property- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation – In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription or in any other manner whatsoever, and also any such property held by her as stridhan immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” It is clear from the above that the deceased wife of the appellant who was in service had acquired some monetary benefits from her employment which was her exclusive property and for the alienation of which she had an absolute right. She had executed a Will in favour of her RSA No. 2001 of 2005 8 mother, which is not in question. She was thus competent to bequeath her property in favour of her mother, to the exclusion of the appellant, her husband. That apart the Will has been proved to be valid and therefore even on the other aspect of the matter, the appeal has to be dismissed. No other point was urged. The question of law that arises for the consideration of this Court is:- “Whether a person found living in adultery is entitled to be considered to be a member of family within the meaning of Clause 6.17(3), so as to avail the benefits of a scheme, even when there is no judicial separation on this ground as envisaged in the rule?” For the reasons recorded above, the question of law is answered to say that where a categoric finding of adultery has been recorded by a Court of competent jurisdiction regarding a spouse living in adultery then he will not be covered within the meaning of word family as stipulated in Clause 6.17(3) of the scheme, and hence not entitled to its benefit even when there is no judicial separation on this ground. Consequently, the appeal being devoid of any merit is hereby dismissed with costs quantified at Rs.10,000/-. May 12 , 2009 (Mahesh Grover) rekha Judge