PADMANABHAN NAIR, MEMBER (J).
The petitioner claiming to be the widow of late Sepoy Sri.Krishna Pillai has filed this T.A. as Writ Petition (C) No. 8305 of 2008 before the Honourable High Court of Kerala for a writ of mandamus directing the first respondent to disburse the Family Pension on account of the death Sri.Krishna Pillai to the petitioner within a time limit. The same was transferred to this Tribunal consequent to its formation.
2. The short facts necessary for the disposal of this Transferred Application is as follows: Deceased Krishna Pillai enrolled in the Army on 2.4.1963. He was discharged on 30.4.1980. He died on 24.7.1997. The petitioner claimed family pension on the ground that Krishna Pillai married her on 19.4.1977 in accordance with the customary rites. Two children by name Honey Krishna and Shenoy Krishna were born to them in the wedlock. Honey Krishna, the son of the petitioner was unmarried on the date of filing the Writ Petition. Shenoy Krishna, the daughter was married. The claim for family pension was rejected by respondents 1 and 2 on the ground that deceased Krishna Pillai was married to third respondent in the year 1974 and during the subsistence of that marriage Krishna Pillai married the petitioner. She was informed that she being the second wife of late Krishna Pillai, is not entitled to get family pension. According to the petitioner, third respondent never approached the first respondent for getting family pension even after a lapse of 10 years since the date of death of Krishna Pillai. Hence, this petition claiming family pension.
3. The respondents filed a counter affidavit contending that petitioner is not the wife of Krishna Pillai. It is contended that marriage between the petitioner and Krishna Pillai was solemnised on 17.4.1977 and much prior to that marriage, he married the third respondent on 3.2.1974. It is contended that marriage ceremony between the petitioner and Krishna Pillai was solemnised during the subsistence of earlier marriage and hence it is not valid. It is also contended that deceased was guilty of bigamous marriage. It is admitted by the respondents that after retirement, deceased had submitted Appendix I, family pension certificate, in which the petitioner was shown as wife and Honey Krishna and Shenoy Krishna were shown as children born in that wedlock. The fact that Krishna Pillai died on 24.7.1997 is also admitted. It is contended that it is a case of dual marriage. Petitioner who is the second wife is not entitled to any amount and the family pension can not be apportioned between two wives. The children born in the second marriage, which is void, are entitled for apportionment with the first wife. It is admitted that the whereabouts of the third respondent were not readily available with the respondents and hence all efforts were made to trace her out for the purpose of granting family pension. The address of the third respondent was obtained from her mother and in pursuance to departmental enquiries, the third respondent wrote a letter on 8.6.2005 asserting that she is entitled to pension as she is the wife of deceased Krishna PIllai. She had claimed that marriage between herself and Krishna Pillai was not dissolved and she is entitled to entire family pension. According to respondents 1 and 2, family pension can be apportioned between the third respondent and the children of the deceased born to the petitioner, provided they are eligible to get the same. Hence they prayed for dismissal of the petition.
4. During the pendency of the writ petition, the matter was referred to permanent Lok Adalat held by the Legal Services Authorities. On 24.2.2009, a joint statement signed by the petitioner and third respondent was filed, in which they had stated that they had settled their dispute and pensionary dues on account of the death of Krishna PIllai would be shared by them equally. The Central Government Standing Counsel took time to get instructions. On 24.3.2009, the Central Government Standing Counsel submitted that he has not yet received any instructions. It was submitted that the marriage between the petitioner and the deceased is void, and half of the amount of family pension can be paid only to the children of the second wife and the remaining portion to the first wife. The case was posted to 25.5.2009 and then to 9.6.2009. On that day also, petitioner and third respondent agreed that they will share the pensionary dues equally. In view of the objection raised by the Central Government Standing Counsel the same was not be allowed. It was observed that if the third respondent and children of the petitioner agreed to share the amount equally, the case can be disposed of in that manner which was not agreed to by the counsel for the petitioner. So, the matter was sent back to the court for hearing.
5. When the case was taken up for hearing, counsel for the petitioner submitted that petitioner has no objection in disposing of the matter in accordance with the settlement arrived at between the petitioner and third respondent. The learned Central Government Standing Counsel submitted that there is no provision for sharing the pensionary benefits between two wives. So, we will have to examine whether such an agreement can be given effect to in this proceedings.
6. Sepoy Sri.Krishna PIllai enrolled in the Army on 2.4.1963 and discharged on 30.4.1980. On 22.4.1974, he filed a declaration certificate as evidenced by Ext.R1(a) to the effect that he had married the third respondent on 3.2.1974 according to Hindu rites. After his retirement on 30.4.1980, he filed Appendix I endorsement of Family Pension Entitlement in which he had stated that Radhamony Amma, who is the petitioner, is his wife. It is also stated that a son by name Honey Krishna was born to them on 11.2.1979 and a daughter by name Shoney Krishna was born on 10.4.1980. A joint photograph of the deceased and the petitioner, attested by a Gazetted Officer, was also submitted along with the petition. The declaration also contained the signature of the petitioner as well as that of the deceased. So, there are two declarations made by the deceased, one on 22.4.1974 in which the deceased has stated that the third respondent is his wife and another one in 1980 in which he stated that petitioner is his wife. It is admitted by the respondents that as per the records, petitioner is shown as Next of Kin, who is entitled to receive family pension. The records further show that when petitioner claimed family pension, she was asked to produce marriage certificate. It is admitted in the counter affidavit that petitioner produced the marriage certificate also. The records also reveal that until 8.1.2005 the third respondent did not make any claim for family pension. She has not produced any documents to prove the marriage. The records also shows that respondents 1 and 2 contacted the mother of the third respondent, obtained the address of the third respondent, who was residing at Pratapgarh in U.P. at that time and then contacted her through the Zilla Sainik Welfare Office, Pratapgarh. In response to a letter, the third respondent has stated that the deceased has married her and that marriage is subsisting. In spite of that fact, she has not produced any evidence to prove the existence of marriage between herself and Krishna PIllai. Respondents 1 and 2 have assumed that there was a valid marriage between the third respondent and Krishna Pillai. It is true that Krishna Pillai gave Ext.R1(a) declaration in the year 1974 but, that is a printed form. Further, the very same person gave another declaration that petitioner is his wife. How the respondents 1 and 2 assumed that there is valid marriage between the third respondent and Krishna Pillai is not discernible from the records, especially in view of the fact the petitioner is shown as Next of Kin in the records. Since the name of the petitioner was shown as Next of Kin, she has the right to collect the amount as a nominee. Whether she has got title over the money is a different matter. We are of the considered opinion that it is not for respondents 1 and 2 to decide the status of a person. That is a matter to be decided by the competent court in appropriate proceedings. But, we do not consider the matter on merits. Even accepting the contentions of the respondents 1 and 2 that third respondent is having title over the pensionary dues, the petitioner has a right to collect the same as she is shown as nominee and Next of Kin. So, we are of the view that it is not necessary to decide as to who is having title over the money. We are of the view that the joint statement filed by the petitioner and the third respondent is to be accepted and acted upon. Respondents 1 and 2 cannot take the stand that they will not accept the agreement. So, without deciding the status of the petitioner and third respondent, we are of the view that a direction can be issued to respondents 1 and 2 to accept and act upon the settlement arrived at between the petitioner and third respondent and disburse the half of the dues to the petitioner and the remaining half to the third respondent.
In the result, the Transferred Application is disposed of in terms of the agreement arrived at between the petitioner and the third respondent. The joint statement is recorded and respondents 1 and 2 are directed to take necessary steps to disburse 50% of the pensionary benefits due on account of the death of Sepoy Krishna Pillai to the petitioner and the remaining 50% to the third respondent. As and when one of them die, the entire amount shall be paid to the surviving person till her death. The joint statement signed and filed by the petitioner and third respondent will form part of this order. We make it clear that we are not deciding the status of the parties and are deciding the case on the basis of the agreement arrived at between the parties. The respondents shall claim and disburse the amount as expeditiously as possible at any rate within six months from the date of receipt of a copy of this order. Issue free copy of the order to both sides.