S.S.Shinde, J.

1] Heard.

2] Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.

3] This Petition takes an exception to the order passed by the Armed Forces Tribunal, Regional Bench at Mumbai dated 2nd May, 2014, to the extent of not granting the prayer to direct the respondent to pay the full family pension to the petitioners and to declare para 11.3 of letter dated 12th November, 2008, as illegal and void. According to the petitioners, both the prayers have not been considered by the Armed Forces Tribunal [hereinafter referred for the sake of brevity as ‘Tribunal’].

4] It is the case of the petitioners that, the respondent No.6 was the wife of deceased Vijay Gadekar, who was in Army, and was son of the present petitioners. The respondent No.6, after death of Vijay, has remarried to another person namely Manoj Dahake. After the death of Vijay, the dispute between the petitioners and the respondent No.6, arose about the entitlement of the pensionary benefits, hence, Writ Petition No.4390 of 2007 was filed. The matter was settled between the parties, and it was ordered that, the pensionary benefits, and insurance scheme benefits will be divided 50% each between the parties, and the same was recorded in the order dated 11th February, 2008, passed by the High Court.

It is further case of the petitioners that, in pursuance of the order, the respondent No.4 instead of paying 50% to each of the parties to the settlement, paid entire final settlement of accounts and Armed Forces Provident Fund to the respondent No.6. The petitioners, by letter dated 24th April, 2010, informed the respondent No.4 that, the respondent No.6 has remarried with Mr. Manoj Dahake, and therefore, the respondent Nos.1 to 5 should stop the payment of family pension to the respondent No.6. The respondent No.4, by his letter dated 30th October, 2010 informed that, as per Circular dated 18.11.2008, bearing No.397, the pension can be given even after remarriage. According to the petitioners, the said Circular is contrary to the law. Since the dispute was not resolved the petitioners did file Writ Petition No.953/2012 before the Hon’ble High Court, but in view of the alternate remedy available, the Petition was disposed of, leaving open to the petitioners to avail the alternative remedy. The petitioners filed Original Application No.73/2012 before the Armed Forces Tribunal, Regional Bench at Mumbai, seeking direction to the respondent Nos.1 to 5 to recover 50% final settlement account, and AFPP fund amount from the respondent No.6 and to pay the said 50% recovered amount to the petitioner No.2, or in the alternate to the petitioner No.1. There was also prayed for revision of the family pension as per 6th Pay Commission. The direction was also sought to the respondents to pay the full family pension to the petitioners. There was also challenge to the para 11.3 of the letter dated 22.11.2008 issued by the respondent No.1 to 5. The Tribunal, by order dated 2nd May, 2014 directed the respondent No.6 to refund the amount of Rs.73,301/- to the present petitioner No.1 and further directed to recover the same from her share in the family pension. During pendency of the Application, the family pension of the respondent No.6 was stayed. It is the case of the petitioners that, the Tribunal has not considered challenge to the para No.11.3 of letter dated 12.11.2008. Hence this Writ Petition.

5] The learned counsel appearing for the petitioners submit that, para 11.1 (a) of the said letter deals with the family pension. The para 11.1 (a) gives the category of family i.e. widow or widower, up to the date of death or remarriage, whichever is earlier. By the said para, the definition of ‘widow’ as family member is given and she will remain family member upto the date of death or remarriage, whichever is earlier, and the said definition of widow, is in accordance with law and in accordance with the provisions of Hindu Adoption and Maintenance