ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

T.A. No. 138 OF 2010

(W.P.(CIVIL) NO. 36863 OF 2008)

WEDNESDAY, THE 19th DAY OF FEBRUARY, 2014/30TH MAGHA, 1935

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

APPLICANT/PETITIONER:

EDWARD N, PARANKIMANVILA VADAKKATHIL,KOTTAPPURAM, MULAVANA P.O., KOLLAM DIST.KERALA, PIN – 691 503.

BY ADV. SRI. JOHNSON GOMEZ

versus

RESPONDENTS/thRESPONDENTS:

1. THE UNION OF INDIA, MINISTRY OF DEFENCE, NEW DELHI – 110011.

2. THE COMMANDING OFFICER, BENGAL ENGINEERING GROUP AND CENTRE, ROORKEE 247667, UTTARANCHAL.

3. THE RECORD OFFICER, RECORDS OFFICE,BENGAL ENGINEERING GROUP AND CENTRE, ROORKEE – 247667, UTTARANCHAL.

T.A. No. 138 of 2010 - 2 -

4. NANDA JOSH @ DEVI, WIFE OF MATWAR SINGH,RESIDING AT HOUSE NO.25, MILAP NAGAR P.O.,MILAP NAGAR, ROORKEE, UTTARANCHAL.

5. BABY JOSE @ KUMARI NEELAM RAWAT ALIAS KUMARI NEELAM D/O. MATWAR SINGH, RESIDING AT HOUSE NO.25, MILAP NAGAR P.O., MILAP NAGAR,

ROORKEE, UTTARANCHAL.

6. VIPIN JOSH ALIAS BRIJANDER SINGH RAWAT ALIAS VIPIN KUMAR, S/O. MATWAR SINGH, RESIDING AT HOUSE NO.25, MILAP NAGAR P.O., MILAP NAGAR, ROORKEE, UTTARANCHAL.

7. MARY EDWARD, AGED 70 YEARS, W/O. EDWARD, RESIDING AT PARANKIMAMVILA VADAKKATHIL,

MULAVANA P.O., KOLLAM DIST., KERALA STATE.

ADDL. 8. THE ADDITIONAL DIRECTOR,

ARMY GROUP INSURANCE FUND, ADJUTANT GENERAL'S BRANCH, INTEGRATED H.Q. OF MOD (ARMY)

RAO TULA RAM MARG, POST BAG NO.14, P.O.VASANT VIHAR, NEW DELHI – 110 057 .

(IS IMPLEADED AS ADDL. R8 VIDE ORDER DT.14.01.2009 IN IA 304/09).

R1 TO R3 BY SRI. TOJAN J. VATHIKULAM

R4 TO R6 BY ADV. SRI. LALIT KUMAR

T.A. No. 138 of 2010 - 3 -

ORDER

Shrikant Tripathi, Member (J):

In the present matter, the dispute pertains to the family

pension and other terminal benefits payable to the Army service of

late Havildar Wilfred Josh No. 1451197, who died while in service on

15th April, 1988. The first set of the claimant is N. Edwrd, father of

the deceased, who filed the present matter in the Hon'ble High Court

of Kerala at Ernakulam as Writ Petition, W.P.(C) No.36863 of 2008,

which was transferred to this Bench under Section 34 of the Armed

Forces Tribunal Act and is registered here as T.A.No. 138 of 2010.

The second set of the claimant is the respondent No.4, Nanda Jose

@ Devi, who claims herself as the legally wedded wife of the

deceased. Respondent Nos. 5 and 6 are said to be the children born

out of the wedlock of the 4th respondent and the deceased Havildar.

The third set of the claimant is Mary Edward, the mother of the

deceased Havildar, who is impleaded as respondent No.3 in the

present matter. But there does not appear to be any dispute between

the petitioner and his wife Mary Edward, the respondent No.3.

2. Before referring to the various allegations of the parties, we

would like to indicate that this transferred application was finally

T.A. No. 138 of 2010 - 4 -

decided by the Bench comprised of Hon'ble Mr. Justice K.

Padmanabhan Nair and Lt. Gen. Thomas Mathew on 26 th November,

2010 with the direction to respondents 1 to 3 to sanction and pay

the family pension, terminal benefits and Army Group Insurance fund

amount to the petitioner, excluding the amount already paid to the

alleged wife and children of the deceased Havildar with liberty to

recover the same from the 4th respondent. A direction to register a

Criminal Miscellaneous Case against the wife (4th respondent) under

Section 340 of the Criminal Procedure Code was also issued. The 4th

respondent (wife of the deceased Havildar) filed O.P. (AFT) No. 2003

of 2012 in the Hon'ble High Court of Kerala, Ernakulam against the

order rendered by this Bench, which was allowed vide judgment and

order dated 9th July, 2013. The Division Bench of the High Court

quashed the order of the Bench and remanded the matter for a fresh

decision in accordance with law. In this way the present matter has

come up before us for a fresh decision.

3. We have heard Mr. Johnson Gomez for the petitioner,

Mr.Lalit Kumar for respondents 4, 5 and 6 and Mr. Tojan J. Vathikulam

for respondents 1 to 3 and perused the records.

T.A. No. 138 of 2010 - 5 -

4. Before entering into the merits of the claim set up by the

petitioner in the present matter, we would like to refer to the

previous litigations with regard to the controversy involved in the

present matter.

5. The first round of litigation took place before the Civil

Courts, Roorkee, U.P. (now Uttarakhad). The respondent Nos. 4 to 6

(alleged wife and children of late Havildar) filed Original Suit No. 253

of 1988 in the Court of Munsiff, Roorkee for the declaration that the

4th respondent, Smt. Nanda Josh @ Devi, was the legally wedded wife

of later Havildar Wilfred Josh, with the allegations that late Havildar,

after relinquishing Christianity and adopting Hindu religion,

solemnised the marriage with her on 30th May, 1982 in accordance

with Hindu rites. Two children, i.e. respondents 5 and 6, were born

from their wedlock. The suit was dismissed by the Second Additional

Civil Judge, (Junior Division), Roorkee vide the judgment and decree

dated 20th February, 1995. Consequently respondent Nos.4, 5 and 6

filed Civil Appeal No. 15 of 1995 against the said judgment and

decree of the trial court. The appeal was finally allowed by the First

Appellate Court (Civil Judge, Senior Division, Roorkee) vide the

judgment and decree dated 20th May, 1997. The Appellate Court

declared that the 4th respondent was the legally wedded wife of late

T.A. No. 138 of 2010 - 6 -

Havildar Wilfred Josh. The 7th respondent filed Second Appeal No.

222 of 1997 before the Hon'ble High Court of Judicature at

Allahabad, but the same was dismissed on 13th April, 2000. Against

the judgment and order of the High Court of Judicature at Allahabad,

the 7th respondent filed S.L.P(C) No.14789 of 2000 before the

Hon'ble Supreme Court, but the same was also dismissed on 20 th

November, 2000. So the judgment and decree rendered by the First

Appellate Court (Civil Judge, Senior Division, Roorkee) attained

finality between respondents 4, 5 and 6 on the one hand and

respondent No.7 on the other. In compliance of the aforesaid decree

of the Civil Court, Roorkee the service records of late Havildar Wilfred

E. was corrected. Consequently the name of the petitioner, who was

recorded as the next of kin of the said Havildar was deleted and the

name of the 4th respondent, Smt. Nanda Devi Josh, was recorded as

the next of kin of the deceased. The kindred roll was also amended

accordingly after compliance of due procedure. Even family pension

and other retiral benefits were directed to be released in favour of the

4th respondent.

6. After the decision of the Supreme Court in the aforesaid

Civil matter, the second round of litigation was initiated by the

petitioner in the Family Court, Kollam in order to get rid of the decree

T.A. No. 138 of 2010 - 7 -

passed by the Civil Court at Roorkee against his wife i.e., the 7 th

respondent. In the Family Court, the petitioner impleaded the 4 th

respondent, her children, his own wife (7th respondent), one Matbar

Singh, who is alleged to be the first husband of the 4th respondent

and the relevant Army authorities as defendants and claimed the

declaration that he was the sole legal heir of the deceased Havildar

and further sought for the declaration that the decree rendered by

the Civil Judge, Senior Division, Roorkee in Civil Appeal No. 15 of

1995 was not binding on him, so he was entitled to receive the

monthly pension payable on the death of his son, deceased Havildar.

The Family Court, Kollam declined to entertain the suit and returned

the plaint for presentation before proper court. The order of the

Family Court being relevant in the present matter, is reproduced as

follows:

“Arguments heard regarding maintainability of the

suit before Family Court. Plaintiff Edward is the father of

the deceased Wilfred. D1 Nanda Devi filed O.S. 353/88

before Munsiff Court Roorkee and secured a declaration

that she is wife of Wilfred. D2 & D3 are said to be the

children of defendants 1 & 4. D5 & 6 are official superiors

of Wilfred and D7 is wife of plaintiff. The suit is for a

declaration that plaintiff father is the sole legal heir of his

son late Wilfred and such a declaration is sought to be

T.A. No. 138 of 2010 - 8 -

issued ignoring the decree in OS 353/88 in favour of D1

that she is the wife of Wilfred. The suit is beyond the

scope of Section 7 of the Family Court Act and this court

has no jurisdiction to entertain the suit. Hence return

plaint for presentation before proper court.”

7. The petitioner, instead of questioning the legality of the

aforesaid order of the Family Court by way of an appeal, filed Writ

Petition, W.P.(C) No.32992 of 2004 before the Hon'ble High Court of

Kerala, impleading almost the same persons as respondents and

claimed reliefs almost of the same nature. The Hon'ble High Court

dismissed the Writ Petition in limine on 12th November, 2004 and

inter alia made the observations that after a long battle has been

fought before the civil courts and the Allahabad High Court, the

petitioner shifted the venue of the legal battle to drag the third

respondent and the children to the southernmost part of this

country. The High Court further observed that when the Family

Court at Kollam, refused to exercise jurisdiction in favour of the

petitioner, another attempt was made to make use of the High Court

a forum for a continued fight against the widow of his deceased son.

8. After the dismissal of the aforesaid Writ Petition by the

Hon'ble High Court of Kerala, the petitioner filed Matrimonial Appeal

T.A. No. 138 of 2010 - 9 -

No.209 of 2004 before a Division Bench of the Hon'ble High Court of

Kerala against the aforesaid order dated 28th October, 2004 of the

Family Court, whereby his plaint was returned for presentation to

the proper court. The learned counsel, instead of pressing the appeal

on merits, sought permission to withdraw the same. Accordingly, the

Division Bench of the Hon'ble High Court permitted him to withdraw

the appeal, without prejudice to his right to seek appropriate reliefs

from appropriate forum.

9. After the disposal of the aforesaid Matrimonial Appeal in

the aforesaid manner by the Hon'ble High Court, the petitioner filed a

fresh suit (O.S. No. 545 of 2004) before the Family Court, Kollam. In

this connection the learned counsel for the petitioner submitted that

the relief No.1 claimed in the previous plaint returned by the Family

Court was deleted, so the Family Court entertained the plaint and

proceeded with the suit. In O.S.No. 545 of 2004, the 4 th respondent

and her children were arrayed as defendants 1, 2 and 3. One Matbar

Singh, who is said to be the first husband of the 4 th respondent, was

impleaded as defendant No.4. Defendants 5 and 6 were respectively

the concerned Commanding Officer and the Pension Disbursement

Officer, Defence Services, Kollam. Besides these persons, he

impleaded his wife, Mary Edward, also as defendant No.7. The Family

T.A. No. 138 of 2010 - 10 -

Court, Kollam finally decided the suit ex parte vide the judgment and

order dated 15th March, 2007. Accordingly a decree was also drawn

up by the Family Court. It is significant to state that neither the 4th

respondent and her children and the aforesaid Matwar Singh nor

even the petitioner's wife Mary Edward appeared before the Family

Court, so the court proceeded ex parte against them. The official

defendants, viz. The Commanding Officer, B.E.G., Roorkee, Pension

Disbursement Officer and Commandant, GREF appeared through

counsel and filed written statement , but did not turn up thereafter,

so the suit proceeded ex parte against all the defendants. The

Family Court ultimately passed the following ex parte order:

“1) It is declared that there exists no legal

marriage in between plaintiff's son Wilfred. E. and the 1st

defendant and that defendants 2 and 3 are not the

children born to Wilfred.

2) It is declared that plaintiff's son Wilfred died

without leaving behind wife and children and that

plaintiff is the sole legal heir of deceased Wilfred.

3) Plaintiff is allowed to recover all the assets of

deceased Wilfred including scheduled assets from 5th

defendant and that the judgment and decree in Civil

Appeal 15/95 on the file of Civil Judge (Senior Division)

T.A. No. 138 of 2010 - 11 -

Roorkee is not binding on plaintiff.

4) Plaintiff is allowed to get monthly pension due

in respect of late Wilfred subject to Rules governing the

same.

5) Parties are directed to suffer their respective

cost.”

10. On the basis of the aforesaid judgment and decree

rendered by the Family Court, Kollam, the petitioner requested the

respondent Nos. 1 to 3 and 8 to issue necessary orders and release

payments in his favour. But they did not pay any heed to the

request, so he filed the present matter by way of Writ Petition (C) No.

36863 of 2008 before the Hon'ble High Court of Kerala and claimed

the following reliefs:

a) issue a writ of mandamus or any other

appropriate writ, order or direction, compelling the

respondents 1 to 3 to sanction and disburse terminal

benefits due to the petitioner's deceased son Hav. Wilfred

E, No.1451197 to the petitioner in the light of Ext.P4

judgment of the Family Court, Kollam in accordance with

law expeditiously and within a time limit that this Hon'ble

Court may consider reasonable.

T.A. No. 138 of 2010 - 12 -

b) Issue a writ of mandamus or any other

appropriate writ order or direction, compelling and

commanding the 1st respondent to consider Ext.P8

representation in accordance with law expeditiously and

within a time limit that this Hon'ble Court may consider

reasonable.

c) Issue such other writ order or direction that this

Hon'ble Court may deem fit and proper in the nature and

circumstances of the case.”

11. It is therefore clear that the petitioner filed the present

matter only for execution of the aforesaid judgment and order of the

Family Court, Kollam and also for the direction to consider his

representation, Ext.P8. The High Court of Kerala, while admitting the

Writ Petition for hearing on 15th December 2008, directed that the

family pension shall not be paid to any one until further orders. The

order so passed may be reproduced as follows:

“....... Heard the learned counsel appearing for

the petitioner. In view of Ext.P4 judgment passed by

the competent Family Court, respondents 4 to 7 in this

Writ Petition cannot claim family pension. In these

circumstances, if respondents 1 to 3 are disbursing family

pension to respondents 4 to 7 or any one among them,

they shall forthwith stop such disbursement. Payment of

T.A. No. 138 of 2010 - 13 -

family pension on account of late Wilfred E. shall not be

made to anyone until further orders.

12. In compliance of the aforesaid interim order of the

Hon'ble High Court of Kerala, the payment of family pension being

made to the 4th respondent was stopped and it was directed that

the same will not be paid to anybody until further orders of the Court.

So, presently none is in receipt of family pension.

13. The learned counsel for the for the petitioner contended

that the Civil Court, Roorkee had no jurisdiction to decide the issue,

whether or not the 4th respondent was the legally wedded wife of the

deceased Havildar, because that issue was cognizable by the Family

Court. But the learned counsel for the petitioner could not produce

any notification to show that there had been any Family Court

either at Roorkee or elsewhere in the district Haridwar, of which the

Civil Court, Roorkee is an outlying Court. In absence of any

notification establishing Family Court in any place in District Haridwar,

the petitioner's counsel could not be said to be justified in saying

that a Family Court had been established either at Roorkee or at

Haridwar. In fact as per the observations made by the Hon'ble High

Court of Kerala in the remand order, paragraphs 17, 18, 19 and 20,

T.A. No. 138 of 2010 - 14 -

the Government of Uttarakhand (old name Utharanchal) constituted

Family Court not only in District Haridwar but also in other districts,

vide Notification No. 66/84 dated 24th December, 2001 for the first

time. After the creation of the Family Courts, the appointments of

the Judges were made. So, the contention that there had been a

Family Court in the District of Haridwar or atleast in Roorkee on the

date when the Civil Suit was filed by the 4th respondent or on the

date of the decree passed therein by the First Appellate Court, does

not appear to have any substance. Apparently if there was already a

Family Court at any place in District Haridwar, there was no question

of establishment of Family Court again in the year 2001. So, the

point that the Civil Suit was not cognizable by the Civil Court at

Roorkee does not appear to have any substance.

14. The learned counsel for the petitioner next submitted that

the petitioner was not a party to the Civil suit filed by the 4th

respondent before the Civil Court, Roorkee. She had impleaded only

the petitioner's wife as the defendant. So the judgment and decree

passed in that suit would not operate as res judicata against the

petitioner and as such he was fully competent to institute the suit

before the Family Court at Kollam. In this connection the learned

counsel for the petitioner relied upon the three Judges' decision of

T.A. No. 138 of 2010 - 15 -

the Apex Court in Raziya Begum v. Sahebzadi Anwar Begum

(1959 KHC 306). In that case, the Apex Court held that a

declaratory judgment would not bind any one other than the party to

the suit unless the parties were privy in estate. The Apex Court

further held that the declaratory decree operates only in personam

and as such binds not only parties to the suit, but also persons

claiming through them. To put it otherwise, the Apex Court was of

the view that no decree can bind a non party. In some cases it can

bind to a non-party on the principle of privity, may be by blood or

otherwise.

15. The learned counsel for the petitioner further submitted

that deceased Havildar Wilfred Josh never converted to Hinduism

and remained as a Christian till his death. Even his funeral was done

by the Army authorities as per the Christian rites, so there could not

be any valid marriage between a Christian and a Hindu. If it is

assumed that there had been any such marriage, the same was null

and void. The learned counsel for the petitioner next contended that

the 4th respondent was married to one GS-121753P PNR Matbar

Singh, who had served in GREF. In O.S.No. 545 of 2004 filed before

the Family Court, Kollam, the Commandant, GREF (defendant No.8

therein) had filed written statement and in paragraph 3 thereof he

T.A. No. 138 of 2010 - 16 -

admitted that as per the service document, Smt. Nanda Devi was

shown as the wife of the aforesaid Matbar Singh and four children

were born to them as per the ghost sheet. The first daughter

Sangeetha Kumari was born on 13th January, 1976, the second

daughter Renu Rawat was born on 20th June 1976 and the third

daughter Neelam Rawat was born on 18th November, 1977. Matbar

Singh and Nanda Devi had one son, Brijender Singh Rawat, who was

born on 1st November, 1984. The learned counsel for the petitioner

further contended that there was no evidence to prove that the

marriage between the 4th respondent and Matbar Singh was ever

dissolved prior to the date of her alleged marriage with the

petitioner's son. He next contended that the certificates, Exts.R4(c)

and R4(d), produced by the 4th respondent were fabricated

documents. The certificate, Ext.R4(c), was issued by the CBSE in

the name of Vipinkumar (6th respondent) on 28th May, 1991 and

according to that certificate his date of birth is 1st November, 1984.

In this connection the learned counsel for the petitioner referred to

the service record of Matbar Singh and contended that the son of

Matbar Singh, Brijender Singh Rawat, was also born on the same

date i.e. 1st November, 1984. The certificate Ext.R4(d) was issued by

the CBSE in the name of Neelam (5th respondent) and according to

that certificate, her date of birth is 18th December, 1981. So the 5th

T.A. No. 138 of 2010 - 17 -

respondent had born before the marriage of the 4th respondent with

the petitioner's son, which took place on 30th May, 1984. Apparently

the 5th respondent is not the daughter of the deceased Havildar.

16. The learned counsel for the petitioner lastly contended

that the aforesaid certificates issued by the CBSE were forged in view

of the fact that the letter issued by the Principal, Army School,

Roorkee to the Deputy Commandant, Bengal Engineer Group and

Centre, Ext.P12, indicated that the said two children were the

children of late Havildar Birbal and Smt. Nanda Devi. Even in the

kindred roll, Ext.P11, pertaining to Matbar Singh the 4 th respondent

has been shown as his wife and one Sangeetha Kumari has been

shown as his daughter. He next contended that all these material

documents could not be produced before the Civil Court, Roorkee, so

the judgment and decree passed by the Civil Court, Roorkee were

liable to be ignored.

17. Mt. Lalit Kumar, appearing for the respondent Nos. 4, 5

and 6 on the other hand submitted that no doubt the petitioner was

not a party to the Civil Suit filed in the Roorkee Court, but it does

not affect the judgment and decree rendered in that case, because

his wife, respondent No.7, contested the matter upto the Supreme

T.A. No. 138 of 2010 - 18 -

Court and lost the battle. The petitioner and his wife, both, have

common interest with no clash of interest in any way and they had

always been living together under the same roof and are still living.

Therefore, the petitioner had full knowledge of the litigation that

took place in Roorkee, in the High Court of Allahabad and the

Supreme Court. Rather he had impliedly joined hands with his wife

in contesting the matter. These facts can be very well inferred from

the statements made by the petitioner in his representation dated

30th November, 2008 (Ext.P8). Mr. Lalit Kumar proceeded further to

argue that the 4th respondent filed the original suit in Roorkee Court

in the year 1988 and ultimately the matter was finally disposed of by

the Apex Court on 20th November, 2000. So that case remained

pending for about more than 12 years and during that period, the

petitioner never came up either to contest the aforesaid suit or apply

for his impleadment or to press on his own independent right in

place of the rights of his wife. After about 4 year of the dismissal of

the S.L.P. by the Apex Court and 16 years of the death of his son the

petitioner started litigation in the year 2004 in the Family Court.

18. Mr. Lalit Kumar next contended that the petitioner's wife,

with whom the applicant had full understanding and concurrence, lost

the battle upto the Apex Court, then the petitioner cooked up the

T.A. No. 138 of 2010 - 19 -

instant case and dragged the 4th respondent and her children to

another round of litigation. The Family Court, Kollam, while passing

the ex parte judgment and order in favour of the petitioner, failed to

ensure due and proper service on respondents 4, 5 and 6. So these

respondents had no opportunity to contest the suit in the Family

Court. Apart from this, the entire verdict of the Family Court is based

on ex parte version of the petitioner, which in no way could be taken

as the basis to discard the judgment and decree of the Civil Court

rendered after full contest. Mr. Lalit Kumar referred to the order

dated 12th November, 2004 rendered by the Hon'ble High Court of

Kerala in W.P.(C)No. 32992 of 2004 and contended that the petitioner

deliberately concealed the said order of the Hon'ble High Court while

filing the case before the Family Court, so, the judgment and order of

the Family Court, which has been obtained virtually practicing fraud

on the Court, have no legal sanctity, specially when the same is

contrary to the verdict of the Hon'ble High Court of Kerala in the

aforesaid writ petition. The Hon'ble High Court took into account

the conduct of the petitioner in causing delay of 16 years in moving

not only the representation, Ext.P8, but also in filing the Writ

Petition. The High Court further found that the petitioner dragged

the respondent No. 4 herein and her children to the southernmost

part of this country for another round of litigation, which was nothing

T.A. No. 138 of 2010 - 20 -

except an abuse of process of the Court. According to Mr. Lalit

Kumar, the finding of the Hon'ble High Court of Kerala has twin

consequences. Firstly, the litigation initiated after about 16 years by

the petitioner in Kerala was frivolous and baseless and secondly the

judgment and decree rendered by the Civil Court, Roorkee were also

binding on the petitioner. If that had not been the conclusion, the

Hon'ble High Court of Kerala would not have dismissed the Writ

Petition on the basis of the judgment and decree rendered by the

Roorkee court. So the fact that the petitioner was not a party to the

civil suit decreed by the Roorkee Court after the judgment and order

of the Hon'ble High Court of Kerala, lost its significance. On the

basis of these facts and circumstances, Mr. Lalit Kumar contended

that the aforesaid ex parte judgment and order of the Family Court,

Kollam, which was obtained without disclosing the aforesaid material

facts, were of no help to the petitioner.

19. Mr. Lalit Kumar next contended that the question

“whether the 4th respondent is the legally wedded wife of late Wilfred

Josh and respondents 5 and 6 are the children born out of their

wedlock? pertains to the legal status of these respondents. Such

question does not come within the domain of the Armed Forces

Tribunal, which is a statutory creation to exercise limited jurisdiction

T.A. No. 138 of 2010 - 21 -

with regard to “service matters” of Armed Forces personnel and as

such the instant petition, whereby only the aforesaid issue has been

raised, was not maintainable. In support of this plea, the learned

counsel for respondent Nos. 4, 5 and 6, contended that the Division

Bench of the Hon'ble High Court of Kerala, while remanding the

matter for a fresh decision, very clearly held in the remand order

that the Armed Forces Tribunal has no jurisdiction to consider the

issue pertaining to the marital status and quashed the finding of this

Bench on Point Nos.4 and 5.

20. Mr. Lalit Kumar next contended that the Transferred

Application has been filed not for any independent relief, but for a

direction to the official respondents to implement the order of the

Family Court. So, the prayer has been made in the present matter

only for the execution of the order of the Family Court. According

to Mr.Lalit Kumar, the Family Courts have been created under the

Family Courts Act, 1984. The said Act and the Rules made

thereunder are complete Code with regard to the procedure as to

how a suit in the Family Court is to be instituted, tried, disposed of

and ultimately the final order is to be executed. If the order of the

Family Court was not being implemented by the official respondents,

the proper course for the petitioner was to move an application under

T.A. No. 138 of 2010 - 22 -

Section 18 of the aforesaid Act before the Family Court itself for

execution of the order. Section 18 of the Act, which is relevant, may

be reproduced as follows:

“18. Execution of decrees an orders:--(1) A decree

or an order [other than an order under Chapter IX of the

Code of Criminal Procedure, 1973 (2 of 1974),] passed by a

Family Court shall have the same force and effect as a

decree or order of a civil court and shall be executed in the

same manner as is prescribed by the Code of Civil

Procedure, 1908 (5 of 1908) for the execution of decrees

and orders.”

21. Mr. Lalit Kumar lastly contended that when the Family

Courts Act has a specific provision for execution of its order, the

jurisdiction either under Article 226 of the Constitution of India or

Section 14 of the Armed Forces Tribunal Act, 2007 could not be

invoked by the petitioner for the execution of the order.

22. We have considered the rival submissions and perused the

record and relevant laws.

23. In the present matter, the dispute is as to who is entitled

to receive the terminal benefits as also family pension payable with

regard to the Army services rendered by the son of the petitioner.

T.A. No. 138 of 2010 - 23 -

It is not in dispute that the petitioner is the father and 7th respondent

is the mother of the deceased and there is no clash of interest

between them. If the petitioner's son had died as a bachelor, in

normal course the petitioner and his wife would have been entitled

for the terminal benefits as also the family pension. But the situation

changed because of the alleged marriage of the petitioner's son with

the 4th respondent much prior to his death. If the 4th respondent is

the widow of the petitioner's son, she would be entitled to all retiral

benefits and family pension in comparison to the parents because of

being a preferential heir. So, the entire controversy rests on the

legal status of the 4th respondent. The issue, therefore, involves for

decision is “whether this Tribunal has any jurisdiction to decide the

legal status of the 4th respondent as the widow of the petitioner's

son? To put it otherwise, we have to see as to whether the Armed

Forces Tribunal has any jurisdiction to decide this issue or not. In

order to consider this question, we have to look into the various

relevant provisions of the Armed Forces Tribunal Act, 2007

(hereinafter referred to as 'the Act').

24. The aforesaid Act has been enacted to provide for the

adjudication or trial by Armed Forces Tribunal of disputes and

complaints with respect to commission, appointments, enrolment and

T.A. No. 138 of 2010 - 24 -

conditions of service in respect of persons subject to the Army Act,

1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to

provide for appeals arising out of orders, findings or sentences of

courts-martial held under the said Acts and for matters connected

therewith or incidental thereto. Section 2 of the Act deals with the

application of the Act, according to which, the Act is applicable to all

persons subject to the Army Act, the Navy Act and the Air Force Act

and is also applicable to retired personnel, who had been subjected

to these three Acts, including their dependents, heirs and successors

in so far as it relates to their service matters. The provisions of

Section 2 being relevant is reproduced as follows:

“2. Applicability of the Act:--(1) The provisions of this Act

shall apply to all persons subject to the Army Act, 1950 (46 of

1950), the Navy Act, 1957 (62 of 1957) or the Air Force Act,

1950 (45 of 1950) including their defendants, heirs and

successors, in so far as it relates to their service matters.”

25. Section 3(o) of the Act defines service matters in relation

to the persons subject to the Army Act, the Navy Act and the Air

Force Act, according to which, all matters relating to the conditions of

their service come within the category of service matters, including

the following matters, namely:-

T.A. No. 138 of 2010 - 25 -

(i)remuneration (including allowances),

pension and other retirement benefits;

(ii) tenure, including commission,

appointment, enrolment, probation,

confirmation, seniority, training, promotion,

reversion, premature retirement,

superannuation, termination of service and

penal deductions;

(iii) summary disposal and trials where

the punishment of dismissal is awarded.

(iv) any other matter, whatsoever.”

The aforesaid section 3(o) has, however, excluded the following

matters from the purview of the service matters, namely:-

(i) orders issued under section 18 of the

Army Act 1950 (46 of 1950), sub-section (1) of

section 15 of the Navy Act, 1957 (62 of 1957) and

section 18 of the Air Force Act, 1950 (45 of 1950) ;

and

(ii) transfers and postings including the

change of place or unit on posting whether

individually or as a part of unit, formation or ship

in relation to the persons subject to the Army Act

1950 (46 of 1950), the Navy Act, 1957 (62 of

1957) and the Air Force Act, 1950 (45 of 1950) ;

T.A. No. 138 of 2010 - 26 -

(iii) leave of any kin;

(iv) Summary Court Martial except where the

punishment is of dismissal or imprisonment for

more than three months;”

26. Apparently Section 3(o) of the Act does not include in any

way the dispute pertaining to the marital status of any Armed Forces

personnel or his heirs and successors. So, such question apparently

does not come within the definition of the term 'service matters'.

27. A reference can also be made to Section 14 of the Act,

which confers jurisdiction, power and authority on the Armed Forces

Tribunal in “service matters”. According to sub-section (1) of Section

14, save as otherwise expressly provided in the Act, the Tribunal

exercises, on and from the appointed day, all the jurisdiction, powers

and authority exercisable immediately before that day by all courts

(except the Supreme Court or a High Court exercising jurisdiction

under Articles 226 and 227 of the Constitution) in relation to all

“service matters”. Other sub-sections of Section 14 pertain to the

procedure as to how the Tribunal has to exercise its powers and

jurisdiction in dealing with any original application. Section 14 of the

Act, being relevant, is reproduced as follows:

T.A. No. 138 of 2010 - 27 -

“14. Jurisdiction, powers and authority in service

matters:-- (1) Save as otherwise expressly provided in this

Act, the Tribunal shall exercise, on and from the appointed

day, all the jurisdiction, powers and authority, exercisable

immediately before that day by all courts (except the Supreme

Court or a High Court exercising jurisdiction under article 226

and 227 of the Constitution) in relation to all service matters.

(2) Subject to the other provisions of this Act, a person

aggrieved by an order pertaining to any service mater may

make an application to the Tribunal in such form and

accompanied by such documents or other evidence and on

payment of such fee as may be prescribed.,

(3) On receipt of an application relating to service matters, the

Tribunal shall, if satisfied after due inquiry, as it may deem

necessary, that it is fit for adjudication by it, admit such

application; but where the Tribunal is not so satisfied, it may

dismiss the application after recording its reasons in writing.

(4) For the purpose of adjudicating an application, the Tribunal

shall have the same powers as are vested in a Civil Court

under the Code of Civil Procedure, 1908 (5 of 1908), while

trying a suit in respect of the following matters, namely:--

(a) summoning and enforcing the

attendance of any person and examining

him on oath;

(b) requiring the discovery and production

of documents;

T.A. No. 138 of 2010 - 28 -

(c) receiving evidence on affidavits;

(d)subject to the provisions of section 123

and 124 of the Indian Evidence Act, 1872

(1 of 1872), requisitioning any public record

or document or copy of such record or

document from any office;

(e) issuing commissions for the

examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default

or deciding it ex parte;

(h) setting aside any order of dismissal

of any application for default or any order

passed by it ex parte; and

i) any other matter which may be

prescribed by the Central Government.

(5) The Tribunal shall decide both questions of law and facts

that may be raised before it.”

28. On a perusal of the aforesaid provision of the Act, it is

crystal clear that the Tribunal has jurisdiction, powers and authority

only to consider and decide the questions with regard to “service

T.A. No. 138 of 2010 - 29 -

matters” of serving and retired Armed Forces personnel. While

considering the question “whether any particular matter is a

“service matter” or not, a reference is required to be made to

section 3(o) of the Act. Apparently, the question pertaining to the

marital status of the 4th respondent does not come within the purview

of the “service matters” as defined in section 3(o) of the Act. This

conclusion is fortified even from the following observations of the

Hon'ble Kerala High court made in paragraph 27 of the remand order:

“27. We find great force in the argument raised

by the learned counsel for the petitioner that the

Tribunal is mainly concerned with disputes relating to

service matters and it cannot act as a Family Court to

decide about the matrimonial status of the parties,

validity of marriage etc. Those aspects will have to be

decided by competent civil/family courts as the case

may be, which are conferred with jurisdiction to decide

such family disputes. The Tribunal is established as a

forum for deciding disputes and complaints with respect

to commission, appointments, enrolment and conditions

of service in respect of persons subject to the Army Act,

1950, the Navy Act, 1957 and the Air Force Act, 1950.

Sub-section (2) of Section 2 of the Armed Forces

Tribunal Act specifies that “the Act shall also apply to

retired personnel subject to the Army Act, 1950 or the

Navy Ac t, 1957 or the Air Force Act, 1950 including

T.A. No. 138 of 2010 - 30 -

their dependents, heirs and successors, in so far as it

relates to their service matters.” The definition of

“service matters” is given under Section 3(o) of the Act.

Section 14 of the Act conferring jurisdiction, power and

authority is in respect of all service matters. This Court

in Soudamini v. Kunhathi (2012 (3) KLT 96) has

held that “any one claiming right under the military

personnel pertaining to any service matter can have

recourse only before the Armed Forces Tribunal and not

before the Civil Court and that rival claims of family

pension between persons claiming under military

personnel can be decided only by the Tribunal.” But we

are of the view that with regard to any disputed

questions of marital status, the matter will have to

depend upon the decision of the competent civil

courts/family courts. In fact, going by the prayers made

in W.P.(C) No.36863/2008, such disputes were not raised

before the competent forum by the sixth respondent, as

what he had sought was a direction to implement the

decree of the family court by the issuance of a writ of

mandamus. At any rate, in the said writ petition he

could not have sought for a relief with regard to the

Religion of his deceased son as well as the question

whether the petitioner herein was really married to him.

In that view of the matter, we are of the view that the

findings rendered by the Tribunal on points 4 and 5

could not be sustained and we hold so. The direction to

register a Criminal Miscellaneous Case under Section

340 Cr.P.C. and the further direction to Army

T.A. No. 138 of 2010 - 31 -

Headquarters to investigate certain matters contained in

paragraphs 31 and 32 of the order, are also vacated.”

29. Now we have to see as to how the matter relating to the

family pension or retiral/terminal benefits of an Armed Forces

personnel are to be dealt with, where the legal status of the claimant

to claim the benefits is in dispute, whether such matters can be

gone into by the Armed Forces Tribunal incidentally or it has to wait

till the decision of the competent court. In this connection a

reference can be made to the following observations of the Division

Bench of the Hon'ble High Court of Kerala made in paragraph 27 of

the remand order.

“But we are of the view that with regard to any

disputed questions of marital status, the matter will

have to depend upon the decision of the competent

civil courts/family courts. At any rate, in the said Writ

Petition he could not have sought for a relief with

regard to the religion of his deceased son as well as

the question whether the petitioner herein was really

married to him.”

30. Looking into all the aforesaid aspects of the matter, we

are of the considered view that the question whether or not the 4 th

T.A. No. 138 of 2010 - 32 -

respondent is the legally weeded wife of the petitioner's son does not

come within the category of service matter as defined in section 3(o)

of the Act and as such this Tribunal has no jurisdiction to decide the

said question.

31. Apart from the aforesaid, we have to see the impact of the

various judgments being relied upon by the parties. We have three

effective judgments. The first judgment and decree is of the Civil

Judge, Senior Division, Roorkee rendered in favour of respondent

No.4 and her children and against the petitioner's wife (7th

respondent). The judgment and decree of the aforesaid First

Appellate Court remained in tact upto the Apex Court. According to

that judgment and decree, the 4th respondent is the legally wedded

wife of the petitioner's son and respondents 5 and 6 are their

children. This finding of the Civil Court, Roorkee is binding atleast on

the petitioner's wife (7th respondent). But there is a contradictory ex

parte order of the Family Court, Kollam in favour of the petitioner and

against respondents 4, 5 and 6. According to said order of the

Family Court, the 4th respondent is not the legally wedded wife of the

petitioner's son and respondents 5 and 6 are not their children. We

have to see as to how these two contradictory judicial orders have to

be reconciled. We have to further see as to whether the judgment

T.A. No. 138 of 2010 - 33 -

and decree of the Civil Court, Roorkee can be applied to bind even

the petitioner and if so, to what extent. In our view, not only the

fate of the order of the Family Court, Kollam, but also the binding

effect of the judgment and decree of the Civil Court, Roorkee on the

petitioner, depends upon the following observations of the Hon'ble

High Court of Kerala, Ernakulam made in W.P.(C)No. 32992 of 2004,

which was filed by the petitioner before approaching the Family

Court, Kollam by way of O.S.No. 545 of 2004:

“ 2. .......However, it is clear from the pleadings in this

writ petition that he was fully aware of the civil case which

ultimately reached the High Court of Allahabad. During

those days, petitioner had not made any complaint before

any authority regarding anything done in respect of the

service records of the petitioner’s son. Instead he

approached the Family Court, Kollam making the third

respondent and the children born to his son as

respondents.”

3. So alleging, the petitioner for the first time, has

filed a representation before the President of India on

11.10.2004 requesting enquiry by a specialised agency like

C.B.I. It is stated that other authorities including the

Prime Minister of India also were approached seeking the

same relief. Though there is a delay of 16 years in filing

the above representation and an equal length of delay in

T.A. No. 138 of 2010 - 34 -

filing this writ petition, there is no explanation from the

petitioner as to why it did not occur to him for such a

length of time that the service records of his son were

tampered and why he did not care to make any enquiry

regarding the alleged tampering of the records. The

bonafides behind the petitioner's present attempt to rake

up old issues after a long period of time is difficult to

appreciate. From the sequence of events narrated in the

writ petition, it is clear as day light that a long battle has

been fought before the Civil Courts and the High Court of

Allahabad. Now the petitioner wants to shift the venue of

the legal battle and to drag the third respondent and the

children to the southernmost part of this country. When

the Family Court at Kollam, refused to exercise jurisdiction

in favour of the petitioner, another attempt is made to

make use of the High Court a forum for a continued fight

against the widow of his deceased son.

4. It is clear from the averments made in this writ

petition that the petitioner is under a serious

misconception about the jurisdiction of this Court as also

the liberty of a citizen to cause unnecessary problems for

others. It is unfortunate that the petitioner feels

aggrieved despite the lapse of 16 years from the death of

his son who, as found by the competent civil courts and

as affirmed by the High Court of Allahabad, had married

the 3rd respondent who gave birth to the respondent

children in that wedlock. Petitioner has misled himself in

thinking that the jurisdiction of this Court can be made use

T.A. No. 138 of 2010 - 35 -

of to harass the respondents. This writ petition is clearly

an abuse of the process of this Court and, therefore, it

deserves to be dismissed in limine. It appears from the

affidavit that the petitioner is an old man. Otherwise, this

is a fit case where the petitioner shall be ordered to pay

exemplary costs which could be utilised by the Legal

Services Authority for its activities including legal aid to the

poor. I refrain from awarding costs for yet another

reason also, namely, that I have dismissed this writ

petition, in limine.”

32. The Hon'ble High Court of Kerala, therefore, clearly

found that the petitioner had not come with clean hand because he

had virtually acquiesced the previous litigation and delayed the

matter for about 16 years to press his own case. Accordingly the

Hon'ble High Court dismissed his claim. In our view, after dismissal

of the petitioner's claim by the Hon'ble High Court of Kerala vide the

order dated 12th November, 2004 in W.P.(C)No. 32992 of 2004, the

petitioner's right, if any, to contest against respondents 4, 5 and 6

and to challenge their legal status has come to an end. As such he

could not be said to be justified in instituting another round of

litigation in the Family Court, Kollam. But he did so, apparently to

defeat the claims of respondents 4, 5 and 6, which remained

approved on judicial side upto the Apex Court. The petitioner, while

T.A. No. 138 of 2010 - 36 -

filing O.S.No. 545 of 2004 before the Family Court made all attempts

to deliberately conceal the entire facts with regard to the filing of the

Writ Petition W.P.(C) No. 32992 of 2004 before the Hon'ble High Court

of Kerala and the order passed therein. By making such material

concealment he duped the Family Court and succeeded to obtain an

ex parte order. If he had disclosed the factum of dismissal of the

aforesaid writ petition, it was quite impossible for him to obtain a

favourable order from the Family Court, Kollam. The impact of the

said judgment of the High Court was also given due consideration by

the Division Bench while rendering the remand order and the same

was made as the main basis to quash the final order of this Tribunal.

In view of these aspects of the matter we can safely conclude that

the petitioner by his act and conduct brought himself also within the

domain of the judgment and decree rendered by the Civil Court,

Roorkee. So he cannot be permitted to take away the effect of that

judgment and decree only on the ground that he was not a party to

that case, especially when despite knowing the fact that he was not

a party to the suit, the Hon'ble High Court of Kerala turned down his

claim and upheld the claim of respondents 4, 5 and 6 by way of the

order dated 12th November, 2004 in W.P.(C) No. 32992 of 2004.

T.A. No. 138 of 2010 - 37 -

33. So far as the submission of the learned counsel for the

petitioner with regard to the authenticity of the certificates, Ext.R4(c)

and R4(d) issued by the CBSE, on the basis of the letter of the

concerned Army School, Ext.P12, and kindred roll, Ext.P11 is

concerned, it has no substance. In our view, neither Ext.P12 nor

P11 could be applied as the basis to discard the aforesaid

certificates due to the simple reason that there is no link evidence to

show that the persons in whose favour the above certificates had

been issued were not students of the school. If two or more

children of the school had similar date of birth or name, it could not

be argued on that basis that the certificates were forged. Neither

Ext.P12 nor Ext.P11 disclose the fact that the children, in whose

favour the aforesaid certificates had been issued, had not studied in

the school. In fact the petitioner is trying to compare the letter,

Ext.P12, and kindred roll, Ext.P11, with the above certificates to say

that the certificates were forged. In our view, this was not possible

in absence of link evidence of the aforesaid nature. We do not,

therefore, agree with the submission of the learned counsel for the

petitioner that the aforesaid certificates were forged.

34. Learned counsel for the petitioner lastly submitted that

the petitioner and his wife (7th respondent) were quite old and infirm

T.A. No. 138 of 2010 - 38 -

persons and have no proper means of livelihood, therefore,

apportionment of the family pension was necessary and expedient in

order to provide them adequate amount for their livelihood. In our

view, the petitioner has not set up any such claim in the Transferred

Application and as such he cannot be permitted to claim

apportionment of the family pension at the stage of argument, so

we do not consider it proper to express any opinion with regard to

the merit of the claim for the apportionment of the family pension

between the petitioner and the 7th respondent on the one hand and

4th, 5th and 6th respondents on the other. But we consider it just and

expedient to provide an opportunity to the petitioner and the 7 th

respondent to move an appropriate representation to the Army

Authorities, including the first respondent for apportionment of the

family pension. If any such representation is moved, the same may

be given due consideration in accordance with law. But we do not

consider it proper to express any opinion regarding the merit of the

claim for the apportionment of the family pension, and as such leave

the same entirely for the decision of appropriate authority, to be

taken in accordance with law.

35. With the above observations, the Transferred Application is

dismissed. The interim order dated 15th December, 2008 rendered in

T.A. No. 138 of 2010 - 39 -

this matter (W.P.(C) No. 32992 of 2004) is vacated.

36. There will be no order as to costs.

37. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI,

MEMBER (A) MEMBER (J)

tm.

/True copy/

Prl. Private Secretary