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GAUHATI HIGH COURT
T. VAIPHEI, J.
Chongtuokhawi -Appellant
Versus
Union of India and Ors -Resopndent
W. P. (C) No. 399 of 2004
Decided On : 05-09-2007
Pension Regulations - Family Pension - Section 4 of the Pension Act, 1871 - Regulations 216, 217, 219, and 220 of the Pension Regulations for Army, 1961
Fact of the Case:
The petitioner, a legally married wife of a deceased Assam Regiment Personnel, filed a writ petition seeking release of family pension and other benefits. The respondent No. 7, the deceased's father, had made a parallel claim to the pensionary and service benefits of the deceased husband, leading to a compromise decree.
Finding of the Court:
The court found that the compromise decree was contrary to the Pension Regulations for Army, 1961 and the Pensions Act, 1871. It held that the widow, as the nominee and legally married wife, was entitled to the family pension and other benefits.
Issues: The main issue was whether the compromise decree was lawful and binding, and whether the widow was entitled to the family pension and other benefits as per the Pension Regulations and the Pensions Act.
Ratio Decidendi: The court held that the compromise decree was void as it contravened the Pension Regulations for Army, 1961 and the Pensions Act, 1871. It emphasized that the widow, as the nominee and legally married wife, had the first and paramount charge upon the family pension of army personnel.
Final Decision: The court allowed the writ petition, directed the authorities to ignore the compromise decree, and ordered the payment of family pension and other benefits to the petitioner within three months.
This is an application under Article 226 of the Constitution of India filed by the petitioner for directing the Union of India and other authorities to release to her the family pension etc. in respect of the deceased Assam Regiment Personnel.
2. I have heard Mr. D. K. Thapa, the learned counsel for the petitioner and Mr. P. Dey, the learned Central Government Counsel, appearing for the Union of India and other authorities. None appeared for the respondent No. 7 despite proper service of notice upon him.
3. Shorn of unnecessary details, the case of the petitioner is that she is legally married wife of the late Joshua P. Dailova, who was a Sepoy bearing registration No. 4361900 in the 15th Assam Regiment and who died on 5-5-1998 while performing duty in "Operation Meghdoot" in Jammu and Kashmir. According to the petitioner, after the death of her deceased husband, she was turned out from her matrimonial home by her father-in-law., namely, Kaibuaia Mizo, (the respondent No. 7 herein), whereupon she had to take shelter at her parental house at Madanriting, Shillong. It is pleaded by the petitioner that the deceased had made her as his nominee in his service record and that after his death, she was paid some amounts by the respondent No. 2 by way of interim payment, but the larger sums payable to her including the family pension of her husband was denied to her. It is further pleaded that the respondent No. 7 had instituted Original (Declaration) Suit No. 4 of 2002 before the learned Civil Judge, Junior Division, Churachandpur, Manipur making a parallel claim to the said pensionary and other service benefits of her husband. As she was not in a position to contest the suit due to financial constraints, she was forced to reach a compromise agreement with the respondent No. 7 on certain terms and conditions. The learned Civil Judge, in terms of the compromise, thereupon passed the judgment dated 28-7-2003 decreeing the suit on compromise in the following manner :-
(a) that the amount left by No. 4361900 Sepoy Late Joshua P. Dailoval of 15th Assam Regiment, by way of :-
(i) Army Group Death benefits Rs. 3,75,000/-
(ii) Amount of Arrears of salary Rs. 19,929/-
(iii) Amount of Ex-gratia awards Rs. 5,00,000/-
(iv) Amount of AFPP Fund and DLIS Rs. 41,389/-
(v) Death-cum-Retirement Gratuity Rs.45,936/- Altogether Rs. 9,82,254/- is to be shared amongst the plaintiff Shri Kaibuaia Mizo father of the said JP Dailoval and Smti Chawngtuokhawl w/o late JP Dailoval. The deceaseds father, the plaintiff herein shall get/enjoy 35% i.e. Rs. 3,43,788.90 P. (Rupees three lakhs forty three thousand seven hundred eighty eight and ninety paise) only out of the total amount herein before stated and the deceaseds wife Smt. Chawng-tuokhawl shall get/enjoy 65% i.e. Rs. 6,38,465.10P. (Rupees six lakhs thirty eight thousand four hundred sixty five and ten paise) only out of the total amount (9,82,254) left by JP Dailoval as they are the 1st class legal heirs of the deceased.
(b) that the person who obtained 65% of the total amount of money left by JP Dailoval (deceased) shall not be entitled to obtain/enjoy the due arrear pension amount as well as any amount of pension which is to be given by the Army Authority. Hence the plaintiff Shri Kaibuaia Mizo shall be entitled to collect/obtain any pension amount which is obtainable due to the death of Joshua P. Dailoval.
(c) that if any monetary benefit excluding the aforesaid total amount i.e. Rs. 9,82,254/- and the pension amount is lying in the name of late J. P. Dailoval the above named parties shall be entitled to enjoy the same at the percentage herein beforestated.
(d) that any correspondence in accordance with the total amounts of debt shall be made between the concerned Army Authority and parties :-
(i) The correspondence in respect of 35% of the total amount of debt shall be made between the concerned Army authority and the plaintiff.
(ii) Likewise the correspondent in respect of the 65% of the total amount of
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