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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,

O.A.No. 2 of 2016

Friday, the 9th day of February 2018

THE HON’BLE MR.JUSTICE V.S.RAVI, MEMBER (J) THE HON’BLE LT GEN C A KRISHNAN, MEMBER (A)

K. Prema, aged 52 Years W/o Late Kothandan, Ex Army No.1288093 Kothur Village and Post (Artillery Regiment) Oomerabad, GudiyathamTaluk, District . .. Applicant

By Legal Practitioner: Shri M. Sivaraman vs.

1. Union of Represented by the Secretary to Ministry of Defence D.H.Q.P.O. South Block New Delhi-11.

2. The Chief of Army Staff CAOS Secretariat South Block Army Head Quarters D.H.Q.P.O., South Block New Delhi-11.

3. The Officer-in-Charge Records Artillery Records, Pin-9008802, C/o 56 APO.

4. Principal Controller of Defence Accounts (Pension) Draupadighat, Allahabad, Uttar Pradesh Pin-201014.

5. The Assistant Director Ex-Serviceman’s Welfare Board Vellore District Vellore-632001.

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6. Anandi @ Anandhammal W/o Devaraj D/o Narayanasamy Naidu Machambut Village, Kothur Post Oomerabad, GudiyathamTaluk Vellore District, Tamil Nadu.

7. K. UdhyaKumar, aged 39 years S/o late Kothandan Door No.120, Dobi Street Kothur Village and Post GudiyathamTaluk, Vellore District Tamil Nadu-635808.

8. K.SathishKumar, aged 37 years S/o Late Kothandan 6, Furlong Road Machambut Village &Kothur Post GudiyathamTaluk Vellore District Tamil Nadu-635 808.

9. K.K. Ashok Kumar, aged 28 years S/o Late Kothandan Door No.166/94, Kothur Main Road GudiyathamTaluk, Vellore District Tamil Nadu-635808.

10. K.Sharmila, aged 27 years W/o Krishnamurthy, D/o Late Kothandan Mop.2/17, Mukkundram Village P.Venkatapuram Post, GudiyathamTaluk, Vellore District Tamil Nadu-632602 (Respondents 7 to 10 impleaded as per order dated 21.09.2016 in M.A.No.37 of 2016 in O.A.No.2 of 2016).

.. Respondents

By :ShriK.Ramanamoorthy, CGSC for R1 to R4

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O R D E R

For Respondents1 to 4ShriK.Ramanamoorthy appeared and for other Respondents, none appeared, though notice served.

1. The submissions in the OA and also the submissions made on behalf of the applicant by the learned counsel for applicant are as follows :-

The applicant submits that her husband late Kothandan has joined the Indian Army on 13.6.1967 in the rank of Gunner and discharged from service on 1.12.1982. The husband of the applicant received pension till his death on 2.12.2011. The said Kothandan, husband of the applicant married 6th respondent and out of their wedlock, 7th and

8th respondents have been born to Kothandan and 6th respondent.

The 6th respondent filed partition and maintenance suit in O.S.No.126 of 1984 in subordinate court, Vellore and compromise decree, passed on 6.2.1990. Kothandan married applicant on 8.6.1984 and R9 and

R10 are the children of the applicant and Kothandan. R9 and R10, attained majority and married. Kothandan filed a divorce suit as against R6 before the Subordinate Court, Vellore in HMOP 26 of 1990 and the same has been decreed on 9.7.1990. The Legal Heirship

Certificate has been issued by the Tahsildar, showing that the applicant and her son and daughter as the legal heirs of deceased

Kothandan. The applicant has sent a petition to the 3rd respondent claiming family pension. The 3rd respondent rejected the claim 4

stating that the applicant is not eligible for family pension on the ground of plural marriage. The 1st wife, son and daughter of the 2nd wife are all married and well settled. The applicant is issued with

Family Card by the State Government. Hence, the applicant has requested to set aside the order of the 3rd Respondent dated

22.8.2013 and to issue family pension and arrears of dearness allowance entitled from time to time, other service benefits and entitlements till date.

2. Learned counsel appearing for the respondents and also the

Respondents in the reply statement have submitted as follows :-

Late Kothandan has been enrolled in the Regiment of Artillery on

13.6.1967 and discharged from service on 1.12.1982, according to the PPO revised from time to time as per the existing policies. The

ZillaSainik Welfare Office, Vellore by letter dated 8.4.2008 forwarded the records for endorsing family pension in favour of the petitioner.

On scrutiny of the documents, certain records have been called for by letter dated 17.2.2012. The applicant informed that her husband

Kothandan expired on 2.12.2011 and requested to include her name in the service records of her husband. By letter dated 1.3.2011 the applicant has been advised to resubmit the same throughZillaSainik

Welfare Office. The deceased soldier, married the applicant on

8.6.1984 during the life time of the 1st wife without obtaining decree of divorce from his 1st wife from any court of law prior to the 5

marriage of the applicant. The family pension is entitled only to a legally wedded widow. Therefore, the applicant is not a legally wedded wife and she is not eligible for grant of family pension.

Hence, respondents have submitted that the OA may be dismissed as devoid of merits.

3. In the rejoinder filed by the applicant, once again the applicant stated that the husband of the applicant, based upon the immoral character and conduct of the 6th respondent herein, left her at the village. The 6th respondent also remarried another person by name

Devaraj. Later on, the soldier married the applicant herein. The marriage between the applicant and the soldier is valid and legal marriage in the eyes of law. Only in the 4th year of desertion of 1st wife, the marriage of applicant and Kothandan has taken place. The marriage between the applicant and Kothandan is a valid one and the applicant is entitled to get the reliefs sought for in the OA.

4. The pertinent point, for consideration, in the present matter is as follows :

Whether on a careful perusal of the records in proper perspective, the applicant is entitled to get the relief sought for in the OA for the reasons stated in it?

5. Analysis, discussion and finding with regard to this above

mentioned point :

In the reply statement, the respondents have admitted that late

Kothandanhas been enrolled in the Indian Army on13.6.1967 and 6

discharged from service on 01.12.1982. It is an admitted fact that he has been granted service pension and the same has been revised from time to time, as per the existing policies. As per Ex.

A1, the applicant has enclosed the discharge book and also the

PPO of Kothandan. In the certificate of discharge itself, the applicant’s name Prema is mentioned and also endorsement made to the effect that the 1st wife has been divorced. Also at Page 7,

Annexure-A2 shows that the Marriage invitation has been issued for the marriage that has taken place on 8.6.1984 between

Kothandan and the applicant herein. In the Partition and maintenance suit filed by 6th respondent and also R7 and R8 as per

Annexure-A3, the final decree has been passed by the Additional

Sub-Judge on 6.2.1990 based on the compromise reached by both the parties.

6. Further, as per HMOP No.26 of 2009 Kothandan has got the dissolution of marriage between Kothandan and 6th respondent herein on 9.7.1990 as per the details enclosed at Page 27 of the type set. As per the letter dated 17.2.2006 enclosed at Page 30,

Kothandan written to the Artillery Records of the respondent by enclosing affidavit for the marriage with the applicant herein along with dissolution of marriage with his 1st wife and also requested the respondent authorities to include his wife (applicant herein) in the pension records as his wife. In the affidavit dated 2.1.2006,

Kothandan stated that he has divorced 6th respondent on 9.7.1990 7

through the Additional Sub-court, Vellore and then married the applicant herein on 10.7.1990 as per rites and customs.

Further as per the letter enclosed at Page 32, the Assistant

Director of Ex-servicemen Welfare, Vellore forwarded the application ofKothandan to the Officer-in-charge Records, Artillery

Records, for endorsement of family pension. Kothandan has signed the affidavit and declaration stating that the applicant is his

2nd wife. The photograph of the applicant Prema is also affixed on the discharge certificate dated13.02.2009. The Death certificate issued by Arkonam Municipal authorities shows that Kothandan expired on 2.12.2011. Further, in the Legal Heirship Certificate issued by Taluk office, shows the names of applicant,

R9 and R10 as legal heirs of the deceased Kothandan for the purpose of getting military pension and military PF. Further as per the Identity card enclosed at Page 41, the applicant herein is shown as widow of Kothandan, and the same has been issued by the Assistant Director, Ex-servicemen Welfare, Vellore on

22.5.2013.

7. On a careful scrutiny of the above mentioned material facts and circumstances, it is found that the applicant is entitled to family pension from the date of filing of the present application i.e. from 12.10.2015 with arrears of pension and other relevant benefits and entitlements. Thus, the point is answered accordingly. 8

8. In the result, it is ordered that the applicant is entitled to get family pension and Respondents 1 to 4 are directed to pay to the applicant herein, the family pension and arrears of pension from the date of filing of the present Original Application, i.e.12.10.2015 and other benefits and entitlements to the applicant within four months from the date of receipt of the copy of the order, failing which the applicant is entitled to get 9% simple interest till realization for the said arrears. The O.A. is ordered accordingly.

No order as to costs.

9. On behalf of the respondents, an oral request has been made to file an appeal before the Hon’ble Supreme Court u/s 31 of Armed

Forces Tribunal Act, 2007. However, on a careful perusal and scrutiny of materials on record, we see that no point of law of general public importance isinvolved in the present case. Hence, the request to grant leave to appeal before the Hon’ble Supreme

Court is not granted.

Sd/- Sd/- LT GEN C A KRISHNAN JUSTICE V.S.RAVI MEMBER(A) MEMBER (J)

09.02.2018 True copy

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No vp

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To:

1. ShriM.Sivaraman, Counsel for applicant 2. ShriK.Ramanamoorthy, CGSC for R1 to R4 3. OIC, Legal Cell, Dakshin Bharat Area, Chennai. 4. Library, AFT, Chennai.

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HON’BLE MR.JUSTICE V.S.RAVI MEMBER (JUDICIAL) AND HON’BLE LT GEN C A KRISHNAN MEMBER (ADMINISTRATIVE)

O.A.No.2 of 2016

Dt:09.02.2018