Daughter’s Registered Divorce Agreement Executed During Parents’ Lifetime Must Be Honoured For Family Pension Claim: Kerala High Court

The Court was hearing a writ petition filed by the Union of India challenging an order of the Armed Forces Tribunal directing the grant of family pension to the divorced daughter of an ex-serviceman from the date of death of her mother, who had been receiving family pension after the death of the original pensioner.

A Division Bench of Justice S. Manu and Justice Muralee Krishna S. observed: “… the dissolution of the marriage of the respondent took place in the year 1974 by way of Annexure A3 registered agreement. Therefore, it can be concluded that the marriage of the respondent … was dissolved by virtue of Annexure A3 agreement during the lifetime of the pensioners, i.e., the father as well as the mother of the respondent. The petitioners ought to have honoured the said dissolution of marriage, which was stated in her application submitted for continuation of the family pension.”

Central Government Counsel M. Shajna appeared for the petitioners, while Advocate G. Krishnakumar appeared for the respondent.

Background

The respondent was the daughter of an ex-serviceman who had been receiving disability pension. After his death, her mother received a family pension. Following her mother’s death, the respondent sought continuation of the family pension because her marriage had been dissolved through a registered agreement, and she had remained dependent on her parents.

The authorities rejected the claim by relying on Ministry of Defence instructions requiring divorce proceedings to have been filed before a competent court during the lifetime of the pensioner or spouse. Since the respondent had obtained a Family Court decree only after the death of both parents, the authorities held her ineligible.

The respondent approached the Armed Forces Tribunal, contending that her marriage had been dissolved much earlier through a registered divorce agreement executed in accordance with the practice prevailing in her community and that the later Family Court decree was obtained only because the authorities insisted on a court certificate.

The Tribunal allowed the claim and directed the issuance of a pension payment order granting family pension from the date of death of the respondent’s mother. The Union of India challenged that order before the High Court.

Court’s Observation

The Court first noted that several material facts were not seriously disputed. The father of the respondent was an Army pensioner, the mother had received a family pension after his death, and the respondent’s dependence on her parents had not been seriously contested. The Court also noted that the marriage had subsisted only briefly and that a registered deed of dissolution had been executed.

The Bench observed: “The customary practice of dissolution of marriage by executing an agreement, among members of the Thiyya community pleaded in the original application, is also not specifically denied in the reply statement filed by the petitioners.”

The Court held that the only point requiring consideration was the legal effect of the registered divorce deed, especially when the respondent had later obtained a Family Court decree of dissolution.

The Court examined Section 29(2) of the Hindu Marriage Act, 1955, which saves any right recognised by custom or conferred by special enactment to obtain dissolution of a Hindu marriage. It held that the respondent’s claim had to be tested in light of this saving clause.

The Court then considered the respondent’s reliance on Marumakkattayam law. Referring to Janaki v. Land Tribunal, Tellicherry (1973), the Court clarified that the applicable Marumakkattayam law for Thiyyas of Malabar was the Madras Marumakkattayam Act, 1932, and not the Tamil Nadu Marumakkattayam Act, 1932.

The Bench examined Section 6 of the Madras Marumakkattayam Act, 1932, which recognised dissolution of marriage by a registered instrument executed by the parties or by an order of dissolution. It found that both the marriage and the registered divorce agreement had taken place before the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975.

The Court observed: “While coming to the facts of the present case, the marriage of the respondent with Elancherry Raghavan was before the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975. Annexure A3 divorce agreement was also executed between the respondent and the aforesaid Raghavan before the coming into force of the said Act.”

On that basis, the Court held that the registered divorce deed had statutory backing under Section 6 of the Madras Marumakkattayam Act, 1932, saved by Section 29(2) of the Hindu Marriage Act, 1955.

The Bench observed: “Therefore, Annexure A3 divorce deed executed by the respondent and her ex-husband has the backing of the provisions under Section 6 of the Madras Marumakkattayam Act, 1932, which is saved by virtue of Section 29(2) of the Hindu Marriage Act, 1955.”

The Court then considered the fact that the original application had pleaded customary dissolution but did not specifically plead the statutory foundation under Marumakkattayam law. It noted that the authorities had not denied the existence of such customary practice either in their reply before the Tribunal or in the writ petition.

Referring to Kizhakkayi Dasan v. Kuniyil Cheerootty (2025), the Court noted that a party relying on custom must ordinarily prove antiquity, continuity and reasonable certainty. However, it held that in the present case, the validity of the registered divorce agreement could be accepted because the right claimed was based on statutory provisions and not merely on custom.

The Bench observed: “But, on analysing the facts and circumstances of this case as narrated above, we are of the opinion that even in the absence of specific pleading in the original application, the contentions of the respondent about the validity of Annexure A3 Divorce agreement can be accepted as it is a right claimed based on statutory provisions and not based on the customary practice.”

The Court then examined the later Family Court decree. It noted that the respondent had pleaded the existence of the earlier registered agreement before the Family Court and had specifically stated in the original application that she was constrained to obtain the decree only because the authorities insisted upon a certificate of dissolution from a competent court.

The Court held that the later decree did not alter the legal effect of the earlier registered agreement. It concluded that the marriage had already been dissolved during the lifetime of both pensioners and that the pension authorities ought to have honoured that dissolution while considering the family pension claim.

The Court also considered the respondent’s argument that the Union of India had suppressed material facts while invoking writ jurisdiction. Referring to Prestige Lights Limited v. State Bank of India (2007), Dalip Singh v. State of U.P. (2010) and Kusha Duruka v. State of Odisha (2024), the Court reiterated that parties approaching the writ court must disclose all material facts.

The Bench noted that the petitioners had not disclosed the execution proceedings before the Tribunal, their undertaking to implement the Tribunal’s order, and the earlier judgment of the High Court relating to the implementation of that order.

The Court observed: “After undertaking before the Tribunal to implement the impugned Ext.P3 order and also suffering Ext.R1(e) judgment, it was the duty of the petitioners to state all those facts in the writ petition.”

However, the Court declined to reject the writ petition solely on suppression, since it found that the respondent had made out sufficient grounds on merits for dismissal of the petition.

The Court ultimately found no illegality or impropriety in the Armed Forces Tribunal’s order granting family pension to the respondent.

The Bench observed: “Having considered the pleadings and materials on record and the submissions made at the Bar, we find no illegality or impropriety in the impugned order of the Tribunal which warrants interference by exercising extraordinary jurisdiction under Article 226 of the Constitution of India.”

Conclusion

The Kerala High Court dismissed the writ petition filed by the Union of India and upheld the Armed Forces Tribunal’s order directing the grant of family pension to the respondent.

The Court held that the respondent’s marriage had been dissolved by a registered agreement during the lifetime of both pensioner-parents and that the authorities ought to have honoured the said dissolution while considering her application for continuation of family pension.

Cause Title: Union of India v. Smt Saraswati (Neutral Citation: 2026:KER:45798)

Appearances

Petitioners: Central Government Counsel M. Shajna

Respondent: Advocates G. Krishnakumar, Nina P. Augustine and Sneha Joy

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