Central Administrative Tribunal - Kolkata
Basanti Mahata vs S E Railway on 20 July, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
Date of order: 0 5.
O.A. No. 35010036312017
Hon'ble Ms. Bidisha Banerjee, judicial Member
Present:
Basanti Mahata, wile of Late Bhuban Mahata
-
Aged about 53 years, residing at Village -
-
Barabigha, Post Office Jhantibandh, P.S.
jhargram, District Paschim Midinapur, Pin
721513, West Bengal.
-
-
Applicant.
-versus-
1. .
f India, through the General
7 8" ManagP&btaStem Railway, Garden
ata --700043.
2 hortsonnel Officer
/Ir
a)
0
h Eastern Railway,
o?kihop, Kharagpur -
/
Respondents.
For the Applicant Mr. A. ChakrabOrtv
For the Respondents Mr, M.K. Bandopadhyay
ORDER
Per Ms. Bidisha Baneriee, Judicial Member:
This application has been filed in order to seek the following reliefs:
"An order do issue directing the respondents to grant family pension in favour of the applicant with effect from 18.12.2011 and also to grant arrears."2
The respondents have resisted the claim by averring as under:
2.
The deceased Bhuban Mahata was an employee of Kharagpur Workshop and worked as Moulder Cr. I holding Ticket No. 2113 retired from Railway service on superannuation on 30.04.2004 and subsequently died on 07.12.2011. He was married to Smt. Sarala Bala Mahato. Smt. Sarala Bala Mahato filed a Matrimonial Suit No. 587 of 2001 Smt. Sarala Bala Mahato --\Is- Bhuban Mahato praying for divorce from her husband and a M.R. Case No. 329 of 1987 seeking maintenance.
The Matrimonial Suit and M.R. Case was disposed of by the Hon'ble Lok Adalat at District Judge Court Premises on 02.09.2002 as under:-
reed in terms of the conciliary "That the suit for en the parties stands dissolved settlement and th,e %al lump sum amount of Rs.
from today. Refp d tSs\date. No order as to costs.
35,600/- to th# Compromis?
nil crtMahata claiming herself as The applicant in grant of family pension in
2 wife of the deceased B her favour with effect from 18.12720TrW1t"rrearS. in support of her claim, she has enclosed a photocopy of Schedule - C, Hindu Marriage Register, Certificate Sri. No. 22/2004. From the Marriage Certificate Schedule 'C' Serial No. 22/2004 dated 04.02.2004, it is seen that a Hindu Marriage was solemnized between the deceased Bhuban Mahato and Smt. Basanti Mahato on 03.11.2002 at Vill.
Barabigha, ihargram and registered on 12.03.2004. It is observed that, the marriage between the deceased and the l wife Smt. Sarala Bala Mahato was dissolved on 02.09.2002. Further, the marriage between the deceased and Smt. Basanti Mahato was solemnized on 03.11.2002. As per the request of the Cl l deceased, the name of wife Smt. Sarala Bala Mahato wasalso deleted from the Id Railway records, however, inclusion of 2 wife was under proCess. In the meantime, the employee retired on superannuation on 30:04.2004 but due to non-inclusion of the name of 2 wife in the Railway records, the Pension Payment Order of the deceased was issued for self only. Thereafter, the employee applied nd for inclusion of his 2 wife name in the Railway records. In support of the date of nd wife, he submitted an affidavit dated 05.10.2004 sworn in before the bith of 2 Hon'ble Notary Public, Kharagpur declaring the date of birth of 2 wife as 12.01:1963 and in support of the date of birth, he enclosed a photocopy of Election Identity Card No. WB/33/231/5ffi7763.4ated 08.06.1995. AccOrdingly, 2 nd wife's name was included The applicant Smt. I (I, r4 C 10 to the concerned Branch Officer that her h ban on 17.12.2011 and prayed for grant of family pension in h4süL1is-k6 for grant of family pension was examined thoroughly and it was found that the marriage of the applicant Smt. Basanti Mahato with the deceased Bhuban Mahato was solemnized long back before the year 1995. It was established from the Election Identity Card No. WB/33/231/567763 dated 08.06.1995 where the name of her husband recorded 2"d marriage before getting divorce from the 1St wife is void as as Bhuban Mahato.
per Hindu Marriage Act and hence her claim was not considered.
The reason for non-consideration of family pension in favour of the applicant has been informed to her vide letter dated 20/23.04.2013 and 4 02.03.2016. Hence the statement of the applicant that the respondents not responded to her representation is denied.
The issue therefore that fell for consideration was about eligibility of the nd applicant to family pension as 2 wife of the deceased employee.
On the question whether the applicant as a second wife of deceased employee would be entitled to family pension of her deceased husband, on the basis of documents where her name is recorded as his wife, the following decisions would be profitable to quote
1) Smt. Ama Devi -vs- Bachan & Anr. [AIR 1980 All 174]
- istr rendered by Hon'ble _____ wherein it was held that .1 roll and the family register of a Lents are admissible in evidence to ries made therein are presumptive led until disproved by satisfactory burden is on the other party to proue
ii) Smt. Sheet [AIR 1981 All 421 wherein it was held that "a marriage though null and void for contravening any of the conditions prescribed by Clauses (i), (iv) and (v) of Section 5 of the Act, has tiet to be regarded a subsisting fact, and in that sense it cannot be said to be wholly non est in law, or a nullity, so long as it is not declared to be null and void by a decree of Nullity of the District Court on a petition presented by either party thereto against the other patty to the marriage. No third person can treat the marriage to be void or have it adjudged to be null and void in any other suit or proceeding unless it bus already been declared to be so by a decree of Nullity of a District Court in accordance with the procedure prescribed by and under the Act; the only exceptions being the case where the aggrieved spouse of the first marriage on account of whose being living the second marriage is void, prosecutes the other spouse for being punished for bigamy under Section 406 or 495 of the Indian Penal Code, read with Section 17 of the Hindu Marriage Act: or the ease where the aggrieved spouse prosecutes the guilty spouse for a contravention of Clauses (iv) and (vi of Section 5 under Section .18(b) of the Act.
(emphasis supplied) ri S He would further place the following decisions in support
iii) In Smt. Ninnala & Ors. -us- Smt. Rukntinibai & Ors. [AIR 1994 Karnataka 2477 the Hon'ble Division Bench referred to a decision rendered in Smt. Pararneshwaribai -vs Muthojirao Scindia [MR 1981 Kant 401 propounding the following:
One thing that stands out permanently in this case is that during his life time Narayanrao treated and acknowledged defendant No. I as his legally wedded wife and defendants 2 to 7 as his legitimate children. This position is also not disputed but in fact admitted by the plaintiffs themselves.
When there is a cohabitation of a man and a woman as presumption "s i ir lock. It is also further held that the proo to a e by examining the priest and other wi 4se ry uch cases. The law in its wisdom has qt thi .I an and a woman live as in favour of thee EIlits1 . ge. To expect them to bring witnesses at a z o i n the witnesses will not be available to prove t ge is to expect something which cannot be done by the parties at that point of time. Therefore, the law in its wisdom has created this presumption in favour of a valid marriage.
A man and a woman tied together by wedlock form the least unit of our complex society and whenever a man and. woman lived as husband and wife for a fairlu long time and were so reputed,Jauj presumes that theij are living as husband and wife and not in a state of concubinage. Presumotion is both with reqard to factumof marriage and legalitig of it. It is a strong presumption as it goes to the root of the structure of society and the persons who challenge it will have to rebut it by clear, cogent and satisfactory evidence. This burden is heavy on them."
The Hon'ble Court held In view of the law quoted above, it is clear that a cohabitation of a man and a woman as husband and wife for a long time under the same roof will raise a presumption of a legal and valid marriage in their favour and the off-springs of such union cannot be termed as /7 19 illegitimate. This presumption will be a rebuttable presumption. But the evidence required to rebut this 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. A perpetual union of a man and a woman goes in favoig of legalitzi and not a crime. The evidence of DW- 1 proves that there was a valid marriage between her and Narayanrao somewhere in 1948 at 1-lebbal and the case of plaintiffs that DW-1 was a kept mistress of Narayanrao is difficult to accept. From the evidence,, it is clear that the age of DW-1 was 60 when she deposed in the year 1986. Therefore she must have been around 22 years of age when she married Narayanrao in the year 1948. No such antecedents of DW-1 are brought in evidence to show that either she came from a family of ill-repute or she was a woman of loose morals'Qr of a bad character so as to make her to live with Narayanrao at such an young age as kept mistress. Ev?n the treatment that Narayanrao meted out to her and her children in his house and in the society at large is as his legitimate wife and legitimate children born to her in his union with DW-1. This leads to an inference that there was a valid marriage between Narayanrao and defendant No. I in the year 1948 at Hebbal as deposed by defendant No. 1. A presumption can be raised in favour of their marriage by virtue of a law of cohabitation of Narayanrad witk_defendant No. I under the same roof as husband an'Jtfe1 rtä8l(411'Satme1tt meted out to defendant No. I by Naray9 as ' 'tim&e\iife and to defendants 2 to 7 as his legitimaf il 3r j (emphasis supplied) f
iv) In Lalsa -vs} Judge, Basti & Ors.
'C-) (AIR 1999 All *" and the female, co-
habitants of about 40 mention the female as wife of the concerned employee in register the Hon'ble Court found that entry in family register could not be treated as clinching evidence to deny status of wife to the female in question.
v) In Bhllaji Bandu Sutar & Lohar -vs- Ran garao Shankar Sutar & Ors. (MR 2015 (NOC) 519 (BOM)J in regard to presumption as to marriage Hon'ble Court held Woman was staying with man for about 22 years till his death. In ration card and voters list she was described as his wife. After his death her name was entered in Gram Panchauat records as owner of suit house. Ration card and voters list were prepared during hfe time of man and to his knowledge. Electoral roll being public document and prepared by public servant in discharge of his public duty is relevant under Section 35. She would be legally wedded wife of that man."
c 7 The following decisions were considered therein:
i). In Lieutenant C.W. Campbell v. John A.G. Campbell [(1867) Law Rep. 2 HL 269], also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which mau be adulterous at the beginning may become matrimonial big consent. This mat,' be evidencedi?ij habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v, The Attorney-General [(1876) 1 AC 686], that the presumption of marriage is much stronger than a presumption in regard to other facts.
ii). Again in Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Ors. 0881) 6 AC 364], it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they ,were living together in consequence of . a. vcjli arriage, and not in a state of concubinage. / (\fltSLrQ,/k a.
In India, the followed in the case of A.
185], in which the Privy
Council laid down here a man and woman
are proved to have 4.'ife, the law will presume,
unless, the contrai were living together in.
consequence of a v ate of concubinage.
In Mohabbat Ali KhanFTW7ttmmad Ibrahim Khan and Ors. [AIR 1929 PC 135], the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
V. In the ease of Gokal Chand v. Parvin Kumari [AIR 1952 SC 231], this Court held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
vi. Further, in the case of Badri Prasad v. Di.,'. Director of Consolidation & Ors. 1(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
/ vii. Again) in Tulsa and Ors. v. Durghatiga & Ors. 008 (4) SCC 5201, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock."
5. The railways have emphatically admitted that the service records bear the name of the applicant as eligible for family pension. The Marriage 9,egistration Certificate reveals and establishes the fact of marriage, post divorce from first wife. The first wife has neither come up to contest the claim of the applicant nor sought for a declaration of her marriage to the employee, as void. The applicant has been honoured as legally married wife and has been regarded as such before public.
In the aforesaid backd red opinion, denial of family pension to the only e would be too harsh and C C iniquitous. Under such t the applicant's claim for grant of family pension be Let appropriate orders be . . j__3.4' nths from the date of receipt of this order.
This O.A. accordingly stands disposed of. No costs.
(Bidisha Ban4jee) Member (J) mo