Widowed Or Divorced Daughter 'Eligible Dependent' Under Freedom Fighter Pension Scheme: Delhi High Court

The Delhi High Court has said that a widowed or divorced daughter is entitled to the benefit under freedom fighter pension scheme of 1980, noting that the scheme does not contemplate their exclusion.

A division bench of Justice Rajiv Shakdher and Justice Talwant Singh observed that a “quick read” of the 1980 Scheme and 2014 Guidelines framed under it would show that an unmarried daughter falls in the category of eligible dependents and hence, is entitled to pension upon the expiry of the freedom fighter.

“The expression “unmarried” adverts to a person who is not married. It includes a woman who is single i.e., who was married but divorced and even a woman who is widowed,” the court said.

The bench also noted that para 6.2.1 of the 2014 guidelines would show that the daughter of a freedom fighter gets excluded from the category of an eligible dependent if she remarries.

Para 6.2.1 states that the dependent pension is transferred to the widow of the pensioner or daughter, who is unmarried. It adds that where a wife or daughter of the deceased pensioner gets re-married, then the pension has to be stopped.

Para 3 of the Scheme defines “eligible dependents” who include spouse or unmarried and unemployed daughters or mother or father.

The bench observed that the exclusion of a widow from the category of eligible dependents, - once she remarries, is also not in consonance with para 3 of the 1980 Scheme, where no such caveat has been put in place.

“Therefore, in our view, the 1980 Scheme did not contemplate exclusion of widowed daughters, as is sought to be contended on behalf of UOI. The 2014 Guidelines were framed to clarify the 1980 Scheme and not amend it,” the court said.

The bench also said that there is a “distinct possibility” of 2014 guidelines “being declared violative of Article 14 of Constitution of India if it were to be challenged” as they only exclude a widow of deceased freedom fighter in case she remarries, from the category of dependent person, but does not extend the exclusion to a widower.

“In other words, if a freedom fighter was a woman, and if she was to pass away, then, even if the husband was to remarry, he could still avail the pension under the 1980 Scheme. There is a distinct possibility of para 6.2.2 of the 2014 Guidelines being declared violative of Article 14 of the constitution, if it were to be challenged,” it said.

The court noted that the “inexplicable provision” is engrafted in para 6.2.2 of the 2014 Guidelines. The provision states that where the husband of a deceased woman freedom fighter re-marries, the family pension continues in such a case. It adds that the re-marriage clause is not applicable in case of a husband, who is getting dependent pension on account of his deceased wife who was a freedom fighter.

The court made the observations while hearing a review plea filed by the Central Government in an appeal against order passed by the single judge on August 10, 2021.

The single judge had quashed the communication dated February 12, 2020 issued by the Central Government declining the request of one Indira Kumari for grant of pension under the 1980 Scheme. The government was also directed to consider the grant of pension, provided other conditions contained in the Scheme stood satisfied.

Kumari passed away on October 2, 2021. The Central Government instituted the appeal on November 15, 2021. On the first day of hearing, a stand was taken on behalf of the government stating that the benefit of the Scheme would be extended to Kumari.

However, the government moved a review petition on January 11 last year. An application was also filed by Kumari’s daughter, being her legal representative.

Dismissing the appeal of the Central Government, the division bench ordered that Kumari’s daughter would receive pension from the date of the application made by her, till the date of her death which occurred on October 2, 2021.

“The UOI will ensure that the monetary benefit is extended to the legal representative of the deceased respondent Ms Indira Kumari, if otherwise there is no impediment under the 1980 Scheme, within the next six weeks,” the court directed.

The court referred to the order of a Division Bench of the Punjab and Haryana High Court in Khajani Devi’ Devi v. Union of India and Others (2016) wherein it was ruled that the expression “unmarried daughter” includes a divorced daughter.

It also noted that the Supreme Court dismissed the SLP preferred by the Central Government against the ruling of Khajani Devi on merits.

“We see no reason not to extend the benefit of the 1980 Scheme to a widowed/divorced daughter. We respectfully agree with the view enunciated by the learned Single Judge of the Punjab and Haryana High Court in Smt. Kamlesh’s case, as well as the view expressed by the learned Single Judge of the Calcutta High Court in Sonali Hatua Giri’s case,” the court said.

The court also noted that an SLP is pending before the Supreme Court in the case of Tulsi Devi v. Union of India and Anr against a 2019 judgment of division bench of Himachal Pradesh High Court.

“Thus, at the moment, the only clear view that we have is that of the Supreme Court in Khajani Devi’s case. The ratio of this judgement is binding on all courts including this court. Thus, for the foregoing reasons and the view expressed by the Supreme Court Khajani Devi’s case, we are not inclined to interfere with the judgment of the learned Single Judge,” the court said.

Title: UNION OF INDIA v. KOLLI UDAY KUMARI

Citation: 2023 LiveLaw (Del) 71

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