Family Pension Scheme- When Share Of Child Born Out Of First Marriage Ceases, Such Share Be Given To Second Wife/Widow: P&H HC

The Punjab and Haryana High Court in an appeal related to Family Pension Scheme has held that when the share of the child born out of the first marriage ceases after attaining a specific age, such a share would be given to the second wife i.e., the only surviving widow.

A Single Bench of Justice Manjari Nehru Kaul stated –

“… Family Pension Scheme being a social welfare legislation, cannot by any stretch of imagination be interpreted to mean that when the share of the child born out of the first marriage ceases after attaining a particular age, such share would then go into the account of the State/defendant-department instead of the entire share going to the second wife i.e. the only surviving widow. In the opinion of this Court, the reliance by learned counsel on Note 3 (i) and (ii) below Rule 4 of Appendix II of Family Pension Scheme 1964 is completely misplaced as there is only one surviving widow in the present case.”

Advocate Parveen Mehta appeared on behalf of the appellants.

In this case, the appellants challenged the concurrent findings recorded by the Trial Court in its judgment and decree being affirmed by the Lower Appellate Court. The husband of the respondent was employed as an Assistant Lineman in the office of SDO, Sonepat. He died in harness in the year 1980. Previously, he was married to his first wife, and out of the said wedlock a son was born. After the death of his first wife, he got married to the respondent. After his death, his pension was disbursed to the respondent by virtue of which the respondent started receiving 50% family pension, and the remaining 50% family pension was given to her stepson till he attained the age of 21 years.

Thereafter, his entitlement to receive the family pension ceased. The respondent claimed that she had become entitled to get a 100% family pension w.e.f. the year 1984, as per family pension rules and the settled law, however, she had been only receiving a family pension to the extent of 50%. The respondent repeatedly asked the appellants to pay her 100% family pension w.e.f. 1984 but to no avail. Hence, a suit for declaration and the mandatory injunction was instituted by her against the appellants. It was held by the lower Courts that the respondent is entitled to 100% family pension w.e.f. 1984 i.e., the date on which the stepson attained the age of 21 years. Being aggrieved by this, the appellants approached the High Court.

The counsel for the appellants submitted before the Court that the judgments and decree of the lower Courts are based on the misinterpretation of the Family Pension Rules and therefore, are liable to be set aside. The High Court in this regard observed, “This Court does not find any merit in the submissions made by the learned counsel for the appellant qua the suit being time barred. It is not disputed by either of the parties that the plaintiff was being paid 50% of the family pension. It is the act of the defendants themselves in withholding of 50% of the family pension from the date on which Devi Singh attained the age of 21 years has given a recurring cause of action to the plaintiff to file the suit. Therefore, the claim of the plaintiff would not be thwarted by limitation, who has since suffered due to the lapse on the part of the defendant.”

The question that arose for consideration before the Court was whether the share of the first wife i.e., 50% of the family pension could be apportioned by the State into its own account in lieu of disentitlement of her heir to receive pension on attaining the age of 21 years, instead of going to the respondent.

The Court noted, “It needs to be observed that had there been no surviving heir from the pre deceased wife of the husband of the plaintiff, the plaintiff in the circumstances, would then have received 100% of the family pension.”

It was further noted by the Court that the counsel for the appellants failed to show that the conclusions arrived at by the lower Courts were either contrary or suffered from any material illegality.

The Court therefore concluded, “In the circumstances, this Court does not find any error in the judgments and decree passed by the Courts below, which would warrant any interference.”

Accordingly, the Court dismissed the appeal.

Cause Title- DHBVNL and others v. Kitabo Devi

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