Claims retirement benefits in divorce proceedings

Dear Sh. Sudhir Kumar,

The author has concealed his identity from this post, he is a serving army officer about to retire from his service.

CCS (CCA) Pension Rules, 1972 are inapplicable in his case.

Regards

@ Ashi,

Did you ask your lawyer engaged by you to contest your divorce case, about the questions/queries raised by you in this query? If so, what is his opinion/advise. If no, why?

The terminal benefits are yet to accrue in your favour/ case accordingly you have not yet received any of the amount from DSOP, Commuted pension, AGIF, Leave encashment and/or Gratuity; therefore, it is still premature and assumed query. However, at the time of fixation of maintenance of estranged wife, the Court shall consider the amount in your hand/bank/asset and not "about to accrue". No court can/shall grant stay for payment of any of the entitlements.

Prima facie your questions are academic and assumptions in nature, which should have been guided by a tutor and not by experts on this platform. 

Discuss with your lawyer, contesting your divorce case, who is fully aware about the facts and circumstances of the case.

Regards.

Dr. J C Vashista, Advocate

# 9891152939

email: majjagdish@yahoo.com

Originally posted by : Dr J C Vashista
	Dear Sh. Sudhir Kumar, The author has concealed his identity from this post, he is a serving army officer about to retire from his service. CCS (CCA) Pension Rules, 1972 are inapplicable in his case. Regards @ Ashi, Regards. Dr. J C Vashista, Advocate # 9891152939 email: majjagdish@yahoo.com

What is the benefit of concealment!

Ms. Ashi,

Asking question both on civil retirement benefits (case of central govt employee) and military retirement benefits at a time and still asking about your assumption (not reality), i.e.,"also consider the following input that NOK/nominee is not the estranged spouse," very clearly reveals as if your question does not relate to a real time problem, rather merely as of academic nature. When you are concerned with the retirement benefits you must have sticked to the real problem with real life situation.

More so, if the observation of Dr. JC Vashista is correct, ie., "The author has concealed his identity from this post, he is a serving army officer about to retire from his service," asking question on on a fake name that too for the opposite s*x, that can only result in a misture of wrong and misleading advice of the members, based on varied presumptions, that may confuse you to a great extent instead of solving your problem in any way.

Better discuss the real problem to get some practical solution.

@ Dr.JC Vashista

I am truly thankful that you have understood the nature.

1. The case is on going for last two years plus.

2.I am the petitioner.

3.Yes i am serving in the defence and i am not using fake name , few of my accounts were hacked by my to be -ex so am being cautious.

4. I have spoken to my divorce lawyer about this on retorement liabilities which he honestly told that he is not well versed on pension system or its rule of central govt employee , hence i thought of getting information to form an informed decision on my retirement dtae and plan.

5.I am already paying maitenance(interim nature) as per the defence interim maint. rule deducted from my salary at source.I have no issue in paying maint. which i am willing.

6.My questions were based purely on my retirement benefits to be accrued to me from pension office.

7. Yes, i have asked few question on assumption but they have arised for a reason as i / and my parents keep getting callsd from my respondent side  stating things of such nature which have made me ask these questions. The calls are of verbal threat like " main toh retirement benefits claim karrongi?

main toh stay lagwadoongi"  Sice lots of things people get educated with is thorugh these forums were experts can give them basic premise.

8.My coming to expert forum was intentional and to benefit on legal rules on retirement benefits only.

9.My name is Lt.Col.A.Kumar

Regards

Dear All expert 

1.I also want to clear i do not want stay i was asking can my opponent ask for stay on the retirement benefits in order to claim.This is an assumption arriving from their calls made to my parents " hum toh benefit claim karenge nahin toh stay lahwa denge"

2.had written earlier consider the input " NOK is not my estranged wife" this i wrote to let you all know that NOK is one of my family member other than respondent(estranged wife) so that i could get information on this as well i.e can my estranged wife claim anything from retirement benefits if she is not NOK , as i have posed this question to people known around me and nobody seems to know as per the rule and giving me mixed and conflicting informations.

regard 

ashi

Dear Lt.Col.A.Kumar,

Instead of asking quite vague and extraneous things, you did so far, you caould have asked straight for her claimed, like, "main toh retirement benefits claim karrongi? main toh stay lagwadoongi." You were also not required to mix up the rules applicable to Central Government employees on civil side and the pension rules of the defence side. Any assumption by anyone can only confuse you, rather than providing solution to your problem.

thank you mr dhingra

you have cleared quite a few apprehensions.

this is exactly what i wanted to know. In addition could you also clarify whether commutation of pension(lumpsum received upon commutation) will be taken into account while calculating maintenance or will it be based on commuted monthly pension.

Also any examples of recurring income?

regards

Amount of basic pension (without commuted part of pension) will be the criteria for consideration of the maintenance charges. She cannot claim any share out of the commuted value of the part of your pension.

Thank You Mr. Dhingra

Things are a lot clearer now to me and it seems i have been able to put across things in a better way to gain your advice.

Commutation is an option extended to defence personnel so i was told that she may press for the lumsum as well , hence the question.

According to me recurring income could be rent from flat or from other investments?May be there are more categories but i could think of these.Do correct me if i am wrong.

regards

Lt.Col A.Kumar

Dear Col,

Being an ex-army officer I had made out your apprehension very well. 

Do not get perterbed on the provocation by your estranged wife, change your NOK.

Contest your case(s) tooth and nail. Try to seek orders/judgment on her maintenance/interim maintenance through Court as soon as you can.

If you may see my reply again, I have opined that the total amount received by you (at the time of delivery of judgment but neither before nor afterwards) shall be considered for deciding the amount of her maintenance/ alimony. However, nothing to worry about the accrual or would be entitled.

Much before hanging your uniform withdraw (maximum) from your DSOP and park the amount which you cannot take back easily such as construction of house etc. Defer your option for commutation of pension (the papers are to be submitted to CDA (O) Pune about 8 months before due date of retirement), which you can exercise lateron. However, leave encashment, balance of DSOP, gratuity etc. you will receive on/by your last working day.

Regards 

@ JC Vashista and Mr.Dhingra

Thankyou for your kind inputs.

However following clarifications is soughted for :

As per Dr. Vashista "I have opined that the total amount received by you (at the time of delivery of judgment but neither before nor afterwards) shall be considered for deciding the amount of her maintenance/ alimony. However, nothing to worry about the accrual or would be entitled"
 

Background:

I am planning to put up my papers in a months time.( say by April end 2017)

2.It will take 3 months to process for release then the release date upto 3 more months,and another 6 to 8 months for the pension and duees to credit.All in all by next 1 year i would have received my dues and monthly pension credited , by May ( 2018) everything streamlined considering am putting my papers now.

3.My case is going on for last 2 years and may so for 2 more years but definitely beyond after i have received all my dues.(may 2018).

4. Question :  So , delivery of judgement in my case  in alll probability will be beyond the time by when i would have received all my dues which also would include my monthly pension and gratuity/Leave encasement/AGIF/commutation.Hence , at the time of delivery of judgment will court consider the total amount received (gratuity/Leave encasement/AGIF/commutation) along with monthly pension for deciding on maitenance or only the basic monthly pension for deciding the maintenence.??

a) If only basic pension then i have nothing to worry, it is ok. BUT

b) If my retirement benofits also is considered for deciding maintenence (gratuity/Leave encasement/AGIF/commutation) then there is a problem as they are only onetime payment made to me for my service and not a monthly occurance AND also opposes the the fact that "no one can claim share from the retirement benefits othe than the serving person ( who is alive) , as it is indirectly  shared if taken into consideration while deciding the maintenence at the time of delivery of Judgement.

These are few poinjts i need clarification technically speaking.

If at all cost total amount received is the criteria for deciding maintenence at the time of delivery of Judgement (gratuity/Leave encasement/AGIF/commutation) + monthly pension , in other words court is granting them a claim share indirectly out of my one time benefits (gratuity/Leave encasement/AGIF/commutation) , Then what are my best options to evade such event ??

regards

Dear Col.Kumar,

I don't know what you have been told by your own lawyer about the monthly maintenance and the alimony. You need not mix up the case of calim of maintenance and lumpsum alimony, both at a time. She can either claim monthly maintenance or one time lumpsum alimony at a time. For monthly maintenance, your paying capacity out of your recurring monthly income may have to be taken care of by the judge of the competent court. Her own sources of income will also have to be taken care of for the purpose of fixation of monthly maintenance charges.

Normally the gross basic pension is taken as the criteria for fixing up of the monthly maintenance, irrespective of the commutation of pension. Commuted value of pension will have to be considered as your own property as an effect to reducing the part of your own receivable part of pension. For monthly maintenance, only gross basic pension (not the commuted part of pension) has to be taken in to account, along with other monthly recurring income, if there be any.

So, even if you get your pension commuted, she cannot lay her claim on the commuted value of the pension. But, if you contend before the court to be getting lesser pension on account of commutation (gross basic pension MINUS the commuted part of pension), you cannot avoid her laying claim on the part of commuted value of pension also. So, Gratuity/Leave encasement/AGIF/commutation cannot become the part of the monthly maintenance, provided your own lawyer is able to represent your case in a very effective manner.

However, if the question of one time lumpsum alimony arises, all these assets like gratuity/Leave encasement/AGIF/commutation may have to be taken as your total earning capacity.

So, better insist on monthly maintenance only, not alimony.

But, one thing I must stress, you should have engaged a lawyer, like Dr. JC Vashista, who knows the service rules also, besides the law, as any civil suit, particularly the divorce and maintenance cases, cannot be fought merely with the knowledge of Acts, if the lawyer is not aware of the relevant rules to be made appropriately applicable in the case.