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2016 DIGILAW 726 (CAL)

Union of India v. Sumana Ghanti

2016-09-15

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. Challenge in the instant writ petition is against a judgment dated 8th April, 2016 passed by the learned Tribunal in OA 350/00081/2016. As a prelude to the instant lis, it needs to be stated that the deceased employee, namely, Pintu Ghanti (hereinafter referred to as Pintu), was a Cabinman under the Eastern Railways and he died in harness on 17th September, 2014. Pintu married one Susmita Bhowmick (hereinafter referred to as Susmita), who subsequently deserted him and married one Nishit Sasmal and gave birth to a male child. In the midst thereof, Pintu married Sumana Ghanti (hereinafter referred to as Sumana) on 5th July, 2011 and such marriage was registered on 22nd November, 2011 and from such relationship one son, namely, Mayukh was born on 5th May, 2012. Prior to his death in harness, Pintu submitted a family declaration to the authorities incorporating the name of Sumana as his wife. Sumana thereafter made representations to the petitioners herein praying for disbursement of the death-cum-retirement benefits of Pintu. Thereafter the petitioner No. 3 issued a memorandum dated 18th September, 2015 stating, inter alia, that in the absence of a valid divorce between Pintu and Susmita, the marriage of Pitnu with Sumana was a void marriage and that only 50% of the pensionary benefits pertaining to the service of Pintu would be made available to the minor son of Sumana. Subsequent thereto, at the instance of the Pension Adalat, Eastern Railways, the petitioners released 50% of the death-cum-retirement benefits of Pintu. Challenging the memorandum dated 18th September, 2015 and claiming disbursement of the entire pensionary benefits, Sumana preferred OA 350/00081/2016 and the same was disposed of by the judgment dated 8th April, 2016 directing the petitioners herein "to disburse the DCRG and family pension to the applicant and other legal heirs of the deceased in accordance with the law, w.e.f. the date the same was due within two months from the date of receipt of a copy of this order. Since the dues were withheld without any valid reason the same should be visited with a penalty of interest @ 8% per annum on the dues, to be calculated from the date the dues become payable". Aggrieved by the said judgment, the railway authorities have approached this Court. 2. Since the dues were withheld without any valid reason the same should be visited with a penalty of interest @ 8% per annum on the dues, to be calculated from the date the dues become payable". Aggrieved by the said judgment, the railway authorities have approached this Court. 2. In the judgment impugned the learned Tribunal considered the provisions of Rule 75 of the Pension Rules, CPO circular No. 60/92, Circular No. [E-(NG) II/91/RC-1/136 dated 2nd January, 1992, RBE 1/92] and sections 5, 16 and 17 of the Hindu Marriage Act of 1955 (hereinafter referred to as the said Act of 1955) and arrived at a finding that Sumana, in spite of being the second wife of Pintu, would be entitled to the settlement dues in terms of the Pension Rules. In arriving at such finding the learned Tribunal has placed reliance upon various judgments and was of the view that since the second wife of the deceased employee had shared with him his bed and board, for a long uninterrupted period and had given birth to a male child, there occasions a presumption of a valid marriage which can only be rebutted by the parties to such a relationship and not by any third party. The learned Tribunal has also observed that the second wife, irrespective of the said marriage being void/voidable, is entitled to maintenance under section 125 of the Code of Criminal Procedure and that a woman is also entitled to avail financial support from a man with whom she had "shared household" for a long period and had been in a "relationship in the nature of marriage" in terms of Protection of Woman from Domestic Violence Act, 2005. 3. The learned Tribunal further held that the Pension Rules do not specifically debar family pension to a second wife and Rule 75(7)(i)(a) & (b) of the Pension Rules in fact provides that where family pension is payable to more widows than one, the same shall be paid to the widows in equal shares and that on the death of a widow, her share of the family pension, shall become payable to her eligible child. 4. Mr. 4. Mr. Anirban Datta, learned counsel appearing for the petitioners submits that the marriage between Pintu and Sumana was admittedly a void marriage since such marriage was solemnized during the lifetime of the first wife (Susmita) and the Pension Rules do not admit of interpretation that a wife whose marriage is void under the provisions of section 11 of the said Act of 1955 will also be covered by the expression 'wife' entitled to the settlement dues. Such an interpretation of the provisions of the Pension Rules encouraging and perpetuating a nullity, is not permissible in law and that accordingly the learned Tribunal erred in law in directing the petitioners herein to disburse the settlement dues of the deceased employee in favour of the second wife (Sumana). In support of such contention reliance has been placed upon the judgment delivered in the case of Union of India & Ors. v. Seema Chakraborty & Ors., reported in (2016) WBLR (Cal) 260. 5. He further argues that the marriage between Pintu and Susmita was the first marriage and such marriage relationship was not severed by any decree from a competent Court and that as such the second marriage, solemnized during subsistence of the first marriage, cannot be considered to be a valid marriage entitling the second wife to avail the settlement dues of the deceased employee. In support of such contention reliance has been placed upon the judgments delivered in the case of in re: Smt. Niru Devi, reported in 2012 (5) CHN (Cal) 565 and in the case of M.M. Malhotra v. Union of India and Others, reported in AIR 2006 SC 80 . 6. Per contra Mr. Masud Karim, learned counsel appearing for the respondent submits that Susmita deserted Pintu and married one Nishit Sasmal and out of such relationship with Nishit a male child was born. The fact that Susmita was residing separately from Pintu stands recorded and certified by the local Gram Panchayat. Susmita never disputed and did not seek any declaration from the competent Court to the effect that the marriage of Pintu with Sumana was null and void. The employer of Pintu is a third party to such matrimonial dispute and no declaration as regards validity of such marriage can be sought for by the employer. 7. Susmita never disputed and did not seek any declaration from the competent Court to the effect that the marriage of Pintu with Sumana was null and void. The employer of Pintu is a third party to such matrimonial dispute and no declaration as regards validity of such marriage can be sought for by the employer. 7. He further argues that admittedly Pintu and Sumana had cohabited and had given birth to a child and had resided together for a long uninterrupted period and such fact gives rise to a strong presumption that there was a valid matrimonial relationship between Pintu and Sumana and such presumption was not sought to be dislodged by Susmita through any appropriate proceeding and the employer also does not have the authority to rebut such presumption by initiating any proceeding and that as such Sumana cannot be deprived of the settlement dues on a purported plea that her matrimonial relationship with Pintu was not valid. 8. Heard the learned advocates appearing for the respective parties and considered the materials on record. 9. At the inception it needs to be stated that we do not agree with the finding of the learned Tribunal to the effect that under the Pension Rules there is no differentiation between a first wife and a second wife and that as such irrespective of validity of the matrimonial relationships, the settlement dues of the deceased employee would be payable to more widows than one surviving after the death of the concerned employee. In the event the presumption pertaining to a matrimonial relationship can be rebutted by conclusive evidence by either party thereto against the other party to the marriage, the second wife, with whom marriage was solemnized during the subsistence of the matrimonial relationship with the first wife, would certainly not be entitled to family pension. Furthermore, such an issue is not involved in the instant lis inasmuch as the first wife did not initiate any proceeding against the matrimonial relationship between Pintu and Sumana. The Court will not adjudicate issues which do not arise strictly on the facts presented before this Court. Furthermore, such an issue is not involved in the instant lis inasmuch as the first wife did not initiate any proceeding against the matrimonial relationship between Pintu and Sumana. The Court will not adjudicate issues which do not arise strictly on the facts presented before this Court. The judgments relied upon by the learned Tribunal pertaining to maintenance under section 125 of the Code of Criminal Procedure are also not applicable to the facts of this case inasmuch as such provision towards maintenance has been enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. Its provisions are applicable and enforceable whatever may be the personal law by which the persons concerned are governed. 10. The judgment delivered in the case of Seema Chakraborty (supra) was delivered in the backdrop of a conflicting claim pertaining to family pension amongst the first wife and the second wife of the deceased employee. The said judgment is clearly distinguishable on facts inasmuch as in the instant case the first wife did not initiate any proceeding against the matrimonial relationship between Pintu and Sumana. In the case of Niru Devi (supra) the claim of the second wife of the deceased employee towards compassionate appointment was decided taking into consideration the provisions of section 494 IPC and not upon considering the presumption towards validity of a matrimonial relationship which occasions when a man and a woman live as husband and wife for a long period and children are born from such relationship. In case of Niru Devi (supra) both the widows were alive on the date of death of the concerned employee and that as such the said judgment cannot be said to have been delivered in a fact situation identical to that of the instant case. The judgment delivered in the case of M.M. Malhotra (supra) is also distinguishable on facts inasmuch as in the same the challenge was against a disciplinary proceeding initiated against the employee on the basis of a complaint lodged by his wife alleging illicit relationship and plural marriage. The judgment delivered in the case of M.M. Malhotra (supra) is also distinguishable on facts inasmuch as in the same the challenge was against a disciplinary proceeding initiated against the employee on the basis of a complaint lodged by his wife alleging illicit relationship and plural marriage. The charge of plural marriage was not found to have been established since on the date the employee entered into marital ties with the complainant there was a subsisting decision rendered by a competent Court to the effect that the complainant at the said juncture was having a valid matrimonial relationship with another person. A decision is not an authority for the proposition which was not argued [See the judgment delivered in the case of Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, reported in 1997(1) SCC 203 ]. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in the decision making process [See the judgments delivered in the case of Krishna Kumar v. Union of India, reported in AIR 1990 SC 1782 , in the case of Commissioner of Income Tax v. Sun Engineering Co. Ltd., reported in AIR 1993 SC 43 and in the case of Municipal Corporation of Delhi v. Gurnam Kaur, reported in AIR 1989 SC 38 ]. 11. Indisputably, the first wife (Susmita) deserted Pintu and married one Nishit and out of the said matrimonial relationship one male child was born. After Susmita deserted Pintu, he married Sumana on 5th July, 2011 and such marriage was registered on 27th November, 2011 and Sumana gave birth to a male child on 5th May, 2014. Pintu died in harness on 17th September, 2014. Pintu in his family declaration incorporated the name of Sumana as his wife. The matrimonial relationship between Pintu and Sumana has not been disputed by the petitioners. From the said facts, a presumption arises to the effect that there was a valid marriage between Pintu and Sumana. Such presumption, however, is a rebuttable one. But the evidence required to rebut such presumption cannot be an evidence of mere probabilities but it should be an evidence to prove conclusively that the possibility of such valid marriage is completely ruled out. Such presumption, however, is a rebuttable one. But the evidence required to rebut such presumption cannot be an evidence of mere probabilities but it should be an evidence to prove conclusively that the possibility of such valid marriage is completely ruled out. In the instant case the matrimonial relationship of Pintu with Sumana was not challenged by Susmita nor even any complaint was lodged by Susmita for taking any disciplinary action against the deceased employee. The employer being a third party cannot initiate any proceeding seeking a declaration pertaining to validity of the matrimonial relationship between Pintu and Sumana. The employer also did not penalise the deceased employee on the charge of bigamy though it was within the knowledge of the employer that Sumana was the second wife of Pintu. Susmita has not claimed the family pension and other dues on the death of Pintu. The very survival of Sumana is now at stake since she was totally dependent upon the income of Pintu. It would thus be iniquitous to deprive Sumana of the settlement dues pertaining to the service of Pintu. In this context it would be apt to refer to the judgment delivered by Justice Krishna Iyer in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., reported in AIR 1978 SC 1807 , where in His Lordship observed that "the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts". 12. For the reasons discussed above, we do not find any error in the directions issued by the learned Tribunal towards disbursement of the death-cum-retirement benefits and family pension to Sumana and other legal heirs of Pintu, in accordance with law with effect from the date the same was due, within two months. However, since Sumana was the second wife of the deceased, the employer rightly conducted an enquiry to ascertain the veracity of her claim towards disbursement of the death-cum-retirement benefits and upon due enquiry an order was passed without any inordinate delay. However, since Sumana was the second wife of the deceased, the employer rightly conducted an enquiry to ascertain the veracity of her claim towards disbursement of the death-cum-retirement benefits and upon due enquiry an order was passed without any inordinate delay. The employer, thus, did not keep Sumana's claim in abeyance for an indefinite period and in such fact situation it cannot be said that the delay which occasioned is attributable to the employer and as such, in our opinion, the employer cannot be saddled with payment of interest. The time towards compliance of the directions contained in the order of the learned Tribunal is extended for a period of 10 weeks from date. It is, however, made clear that in the event such directions are not complied with within the period as directed, the petitioners would be liable to pay interest at the rate of 10% per annum. 13. The writ petition is, accordingly, disposed of. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.