Court validates customary divorce, allows 69-year-old woman father’s Army pension

“The dissolution of the marriage of the respondent (the daughter who gets the pension) took place in the year 1974 by way of registered agreement. Therefore, it can be concluded that the marriage of the respondent with her husband was dissolved by virtue of 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…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. In the result, this writ petition stands dismissed,” the court said on June 29.

The judgment marks the end of a long legal battle for the daughter, who had been living with her parents since leaving her matrimonial home just three days after her marriage in 1973. Although she and her husband had executed a registered customary divorce deed in 1974, defence authorities refused family pension after her mother’s death in 2015, insisting on a court decree of divorce and later rejecting her claim because the family court decree was obtained only in 2018.

Justices S Manu and Muralee Krishna S upheld the tribunal’s direction granting family pension to the daughter with effect from August 9, 2015. (Image enhanced using AI)

Marriage ended within days, customary divorce followed

According to the judgment, the daughter belongs to the Hindu Thiyya community in North Malabar. Owing to financial hardship, she had discontinued her education after Class IV. At the age of 16, she was married on February 18, 1973. She claimed the marriage was conducted without her consent and despite her resistance.

The court noted that she returned to her parental home on the third day of the marriage itself and never resumed matrimonial life. After attaining majority, she and her husband executed a registered divorce deed on November 27, 1974, before the sub-registrar’s office at Kadirur, in accordance with the customary practice prevailing among members of the Thiyya community in the locality. Since then, she continued to reside with and remain dependent on her parents until their death.

The judgment also records that her former husband remarried in 1974 itself after the execution of the divorce deed and had children from that marriage, reinforcing the daughter’s case that the marital relationship had ended decades ago. She was also recognised as a dependent daughter under the ‘Ex-Servicemen Contributory Health Scheme’ during her father’s lifetime.

Why pension claim was rejected

Her father, an Army Lance Havildar/Naik, had been granted disability pension owing to severe cardiac ailments. After his death in 1989, his widow received family pension until her death on August 9, 2015.

Following her mother’s death, the daughter applied for continuation of family pension. Defence authorities initially sought documents including income and non-remarriage certificates, which she furnished. However, officials also insisted on a court-issued divorce decree.

To comply with that requirement, the daughter approached the family court at Thalassery, which granted a decree of divorce on January 27, 2018. Despite this, her request was rejected because the divorce proceedings had been initiated only after the death of both parents.

Relying on the Ministry of Defence’s letter dated November 17, 2017, authorities maintained that only daughters who had instituted divorce proceedings during the lifetime of the pensioner or spouse were entitled to family pension. Her claim was eventually closed, forcing her to approach the tribunal in 2021.

Tribunal ruled in her favour

The tribunal accepted the daughter’s case and held that she was entitled to family pension from August 9, 2015. It directed issuance of a pension payment order and payment of arrears within four months, failing which interest at nine per cent per annum would be payable.

The tribunal also declined the government’s request to grant leave to appeal to the Supreme Court, observing that the matter did not involve any question of law of general public importance.

Centre challenged tribunal order

Before the high court, the Centre reiterated that the paragraph four of the Ministry of Defence’s 2017 policy made it mandatory that divorce proceedings should have been filed before a competent court during the lifetime of the pensioner or spouse. Since the daughter had approached the family court only in 2017, two years after her mother’s death, the authorities argued she was ineligible for family pension.

The daughter, however, contended that the insistence on a court decree ignored the legal effect of the registered divorce deed executed in 1974 under the customary law applicable to members of the Thiyya community. She relied upon Section 29(2) of the Hindu Marriage Act, which preserves customary modes of dissolution of Hindu marriages, and on the Kerala High Court’s earlier decision in Janaki vs Land Tribunal, recognising that Thiyyas of North Malabar are governed by Marumakkattayam law.

She also argued that the authorities had approached the high court without clean hands by suppressing earlier proceedings relating to implementation of the tribunal’s order.

How 1932 law, Hindu Marriage Act shaped verdict

A central pillar of the Kerala High Court‘s ruling was its interpretation of Section 29(2) of the Hindu Marriage Act, 1955, which preserves rights recognised by custom or special enactments for the dissolution of Hindu marriages. The bench held that daughter’s registered divorce deed, executed on November 27, 1974, drew legal validity from Section 6 of the Madras Marumakkattayam Act, 1932, a law that governed certain matrilineal communities, including the Thiyyas of North Malabar, before later reforms.

The court noted that both daughter’s marriage in 1973 and the execution of the registered divorce agreement in 1974 took place before the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. It therefore held that the divorce agreement continued to enjoy statutory protection because the right to dissolve the marriage under the 1932 law was expressly saved by Section 29(2) of the Hindu Marriage Act. The bench also referred to earlier decisions, including Janaki v. Land Tribunal, Tellicherry and Krishna Pillai vs Subhadra Amma, while explaining that such customary rights survived despite subsequent legislative changes.

Applying these principles, the high court concluded that the daughter’s marriage had legally ended in 1974 itself through the registered customary divorce and that the family court decree obtained in 2018 merely formalised a status that already existed. Consequently, the authorities could not insist on the later decree to deny family pension, particularly when the customary divorce had legal recognition under the applicable statutory framework.

High court’s reasoning

• The bench found that several crucial facts were undisputed.
• It noted that the daughter had lived separately from her husband since February 1973, had executed a registered customary divorce deed in 1974.
• She remained dependent on her parents throughout, and that the existence of the customary divorce was never specifically denied by the Union in its pleadings, the court said.
• The court observed that Section 29(2) of the Hindu Marriage Act expressly saves rights recognised by custom to dissolve Hindu marriages.
• Therefore, the legal effect of the 1974 registered divorce deed could not be ignored merely because a family court decree was subsequently obtained in 2018 for the purpose of satisfying pension authorities.
• The bench agreed with the tribunal that the later decree merely recognised a marital relationship that had effectively ended decades earlier under a recognised customary practice.
• Consequently, the respondent could not be deprived of family pension solely because the judicial decree came after the death of her parents.

Court also notes non-compliance by authorities

The judgment stated that even after the tribunal passed its order in August 2023, authorities failed to implement it. The daughter was compelled to file execution proceedings, followed by a writ petition seeking implementation, and eventually contempt proceedings before the high court.

Although she argued that these developments had been suppressed by the Union while filing the present writ petition, the high court said it was unnecessary to examine that issue in detail because the government’s challenge failed on merits.

Dismissing the writ petition, the bench upheld the tribunal’s direction granting family pension to the daughter with effect from August 9, 2015, bringing to a close a dispute that stemmed from a marriage, which took place more than five decades ago and reaffirming that legally recognised customary divorces cannot be disregarded while determining pensionary entitlements.

Why this ruling matters

The judgment is significant because it recognises that a customary divorce protected under Section 29(2) of the Hindu Marriage Act carries legal validity and cannot be brushed aside merely because a formal decree from a family court was obtained later. The high court held that where a marriage had already been dissolved through a legally recognised customary practice during the lifetime of the pensioner’s parents, authorities cannot deny family pension by relying solely on the date of the subsequent court decree.

The ruling is likely to have wider implications for family pension disputes involving divorced daughters, particularly in cases where marriages were dissolved under recognised customs or special personal laws before parties later approached civil courts for formal declarations. It also serves as a reminder that administrative authorities must consider the substantive legal status of an individual’s marital relationship rather than rejecting claims on procedural or technical grounds alone.