Bigamy; Union of India Vs. Sushila Devi [Calcutta High Court, 27-09-2016]

Pension – Bigamy – The employer being a third party cannot initiate any proceeding seeking a declaration pertaining to validity of the matrimonial relationship. The employer also did not penalise the deceased employee on the charge of bigamy though it was within the knowledge of the employer.

# Employer


IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction APPELLATE SIDE

Present: The Hon’ble Justice Nishita Mhatre & The Hon’ble Justice Tapabrata Chakraborty

Judgment On : 27th September, 2016

W.P.C.T 174 of 2016

Union of India & Ors. versus Sushila Devi

For the Petitioners : Mr. P.S. Bose, Mr. Subrata Das Gupto; For the Respondent : Mr. Hari Narain Sahu, Mr. Somnath De.

Tapabrata Chakraborty J. :

Challenge in the instant writ petition is against a judgment dated 4th May, 2016 passed by the learned Tribunal in OA 350/01506/2014.

As a prelude to the instant lis, it needs to be stated that the deceased employee, namely, Siyaram Rajbanshi (hereinafter referred to as Siyaram), entered into service on 18th July, 1979 and died in harness on 13th September, 2012, while working in Traffic Department of the Railways. Siyaram married one Putul Devi (hereinafter referred to as Putul), who gave birth to one son, namely, Sanjoy Rajbanshi (hereinafter referred to as Sanjoy) and one daughter, namely, Usha Kumari. Putul expired on 4th November, 1979. Prior thereto, Siyaram married Sushila Devi (hereinafter referred to as Sushila) on 11th February, 1974 who gave birth to a daughter, namely, Gita Kumari on 4th February, 1976. After the demise of Siyaram, Sanjoy got compassionate appointment in place and stead of his deceased father but the death-cum-retirement benefits pertaining to the service of the deceased employee were not disbursed in favour of Sanjoy. Sushila’s name stands incorporated in the service records of the deceased employee as the wife of Siyaram and she applied for disbursement of the death-cum-retirement benefits but such prayer was turned down by an order dated 2nd March, 2014 observing, inter alia, that as the marriage of Siyaram with Sushila was a second marriage solemnized during the lifetime of the first wife, the same was a void marriage as per the

# Hindu Marriage Act, 1955

(hereinafter referred to as the said Act of 1955) and accordingly she would not be eligible to the settlement dues. Aggrieved thereby, Sushila preferred OA 350/01506/2014 impleading Sanjoy.

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 said Act of 1955 and arrived at a finding that Sushila, in spite of being the second wife of Siyaram, 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 female 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

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 and accordingly the learned Tribunal has directed that “the share of Putul Devi (the first wife) would bestow upon her children, if they were still eligible in terms of pension rules governing the employee, and as such they could very well share it with the present applicant in 50% share”.

Mr. P. S. Bose, learned senior counsel appearing for the petitioners submits that the marriage amongst Siyaram and Sushila was admittedly a void marriage since such marriage was solemnized during the lifetime of the first wife (Putul) 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 (Sushila). 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

He further argues that the marriage amongst Siyaram and Putul 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 judgment delivered in the case of

# In re: Smt. Niru Devi, reported in 2012 (5) CHN (Cal) 565

Per contra Mr. Hari Narain Sahu, learned counsel appearing for the respondent submits that the first wife of Siyaram admittedly expired prior to the date on which Siyaram entered into service and that as such on the date of entry into service Sushila was the sole surviving wife of Siyaram. Putul during her lifetime did not dispute and did not seek any declaration from the competent Court to the effect that the marriage of Siyaram with Sushila was null and void. The employer of Siyaram is a third party to such matrimonial dispute and no declaration as regards validity of such marriage can be sought for by the employer.

He further argues that admittedly Siyaram and Sushila 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 amongst Siyaram and Sushila and such presumption was not sought to be dislodged by Putul during her lifetime 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 Sushila cannot be deprived of the settlement dues on a purported plea that her matrimonial relationship with Siyaram was not valid.

Heard the learned advocates appearing for the respective parties and considered the materials on record.

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 amongst Siyaram and Sushila and that 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.

Rule 75(7)(i)(b) of the Pension Rules provides that “on the death of a widow, her share of family pension, shall become payable to her eligible child”. In the instant case the right to avail family pension did not even crystallize in favour of Putul since she expired prior to Siyaram’s date of entry into service. The right of the children born out of the matrimonial relationship amongst Siyaram and Putul, however, stands protected since they are children born out of a valid matrimonial relationship and as such we do not find any error in the observation of the learned Tribunal to the effect that “the share of Putul Devi (the first wife) would bestow upon her children, if they were still eligible in terms of pension rules governing the employee, and as such they could very well share if with the present applicant in 50% share”.

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 judgement is clearly distinguishable on facts inasmuch as in the same both the widows were alive on the date of death of the concerned employee but in the instant case the first wife expired prior to the date of the employee’s entry into service. 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 494IPC and not upon considering the presumption towards validity of a matrimonial relationship which occasions when a man and a woman lives 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 judgement cannot be said to have been delivered in a fact situation identical to that of the instant case. 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

Indisputably, the first wife (Putul) of Siyaram expired on 4th January, 1979 and Siyaram married Sushila on 11th February, 1974 and Sushila gave birth to a female child on 4th February, 1976. Siyaram entered into service on 18th July, 1991 and expired on 13th September, 2012. On the date of death of Siyaram, Sushila was the sole surviving widow and the matrimonial relationship amongst Siyaram and Sushila was of about 38 years and such subsisting matrimonial relationship has also not been disputed by the petitioners. From the said facts, a presumption arises to the effect that there was a valid marriage amongst Siyaram and Sushila. 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 Siyaram with Sushila was not challenged by Putul nor even any complaint was lodged by Putul 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 amongst Siyaram and Sushila. The employer also did not penalise the deceased employee on the charge of bigamy though it was within the knowledge of the employer that Sushila was the second wife of Siyaram. Putul’s son, namely, Sanjoy, has already been appointed on compassionate ground in place and stead of his deceased father. The very survival of Sushila is now at stake since she was totally dependent upon the income of Siyaram. It would thus be iniquitous to deprive Sushila of the settlement dues pertaining to the service of Siyaram. 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

wherein 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”.

For the reasons discussed above, we do not find any error in the directions issued by the learned Tribunal towards disbursement of the pensionary dues in favour of the second wife of the deceased employee, in accordance with Rule 75(7)(i)(a) & (b) of the Pension Rules, with arrears. However, since Sushila 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 Sushila’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.

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.

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