The Court said that the term ‘unmarried’ not only includes a person who is not married but also divorced and widowed.
The Delhi High Court on Friday held that a widowed or divorced daughter of a freedom fighter is entitled to pension under the Swatantrata Sainik Samman Pension Scheme of 1980 [Union of India v Kolli Uday Kumari].
A division bench of Justices Rajiv Shakdher and Talwant Singh dismissed an appeal by the Central government challenging an order of the single-judge granting benefit of pension to one Indira Kumari.
The division bench rejected the Centre’s arguments that the term ‘unmarried daughter’ excludes widowed and divorced daughters and that allowing benefits to them would result in opening the floodgates and will burden the exchequer.
The Court said that the expression ‘unmarried’ not only includes a person who is not married but also a woman who is single i.e., who was married but divorced and even a woman who is widowed.
“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 Court concluded.
Kumari’s father was a freedom fighter who participated in the Independence movement between 1941-42. He started receiving pension in December 1997.
In 2014, the government came up with revised policy guidelines to close the gaps and deal with the fact that banks were dispensing pensions to married daughters who were not eligible.
As her father died in November 2019, the petitioner approached the bank to grant her pension. The request was forwarded to the Ministry of Home Affairs (MHA) which rejected her request on February 12, 2020.
She then approached the High Court challenging the decision. The single-judge ruled in her favour but she died in October 2021.
In November 2021, the Central government filed an appeal. When the case came up for hearing, it took the stand that the benefit of the 1980 Scheme would be extended to Indira Kumari. Based on the stand, the appeal and the pending applications were closed.
However, the government then had a change of heart and moved a review petition.
After considering the arguments, the judges noted that para 6.2.1 of the 2014 Guidelines, excludes from the category of dependent person, a widow of the deceased freedom fighter in case she remarries, but does not extend this 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… a plain reading of para 6.2.1 would show that, as far as the daughter of the freedom fighter is concerned, she gets excluded from the category of an eligible dependent only if she remarries,” the Court noted.
Though the bench said that there is a distinct possibility that the said paragraph can be declared violative of Article 14 of the Constitution but it would not dwell on it because it was not under challenge.
The Court further said that paragraph 5.2.5 of the guidelines that say that the widowed/divorced daughter is not eligible for pension, is also not in consonance with the 1980 scheme.
“The 2014 Guidelines were framed to clarify the 1980 Scheme and not amend it. As alluded to hereinabove, para 5.2.5 of the 2014 Guidelines is intrinsically inconsistent with the remaining provisions of both 2014 Guidelines as also the provisions of the 1980 Scheme,” the Court said.
Therefore, there is no reason why the benefit of the scheme should not be extended to a widowed/divorced daughter, the bench underscored.
“We conclude, we may emphasize that our decision in the instant matter is not based on a concession given by the counsel for the UOI, but is based on the merits of the case. Therefore, we are inclined to allow the review petition,” the Court said.
The Court proceeded to recall its order which had closed the appeal and dismissed the plea on merits.
It also directed the Central government to ensure that the legal representatives of Indira Kumari receive the pension within six weeks from the date of application made by her to the date of her death.
Central Government Standing Counsel Harish Vaidyanathan Shankar appeared for the Union government.
