Smt. Asha Raghu Roman vs Mumbai Board Of Trustees Of The ...
2016 Latest Caselaw 6840 Bom

     suresh                                    908-WP-12242.2016.doc




                                                                     
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                             
                         WRIT PETITION NO.12242 OF 2016


     Smt. Asha Raghu Roman,




                                            
     C/o Avdut Nathu Pachpute,
     D-203, Suresh Complex,
     Gymkhana Road, Near Hanuman
     Mandir, Sangarli, Dombivali,




                                    
     District: Thane-421 203.                         ....  Petitioner

              - Versus -
                             
     1. Mumbai Board of Trustees of the Port
                            
         of Mumbai, a Statutory Corporation
         incorporated under the Major Port
         Trust (Amendment) Act, 1974, 
         having office at Vijay Deep,
      


         S.V. Marg, Mumbai.
   



     2. Finance Department, Pension Branch,
         Mumbai Port Trust, Imperial Chambers,
         S.S. Tolani Marg, Ballard Estate,
         Mumbai-400 001.                              ....  Respondents





     Ms Aditi S. Naikare i/by Mr. Pradeep J. Thorat for 
     the Petitioner.





     Mr. Rakesh Singh with Mr. Pushkal Mishra and 
     Mr. Kunal Cheddha i/by M/s. M.V. Kini & Co. for the 
     Respondents.




                                                                    Page 1 of 8


    ::: Uploaded on - 03/12/2016             ::: Downloaded on - 05/12/2016 00:35:51 :::
      suresh                                              908-WP-12242.2016.doc

                                         CORAM: S.C. DHARMADHIKARI &




                                                                               
                                                        B.P. COLABAWALLA, JJ.

DATE : DECEMBER 01, 2016

ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.):

1. Rule. The respondents through their counsel waive

service. By consent, rule is made returnable forthwith and the

writ petition is taken up for hearing and final disposal.

2. The petitioner has approached this Court claiming

that she is the widow of one Raghu Sakhru Roman. He was the

employee of respondent No.1. He was entitled to pension. The

writ petitioner claims that she was married to another

gentleman Shri Zimesh Darshrath Phapale on 27-5-2003, at

Pune, according to Hindu vedic rites and ceremony. She stayed

with the said Phapale till 15-9-2003. They separated because of

difference of opinion. Their relations were strained. Eventually

they executed a written Deed of Divorce. That was a Deed dated

14-12-2007. By consent and without any force or pressure, they

agreed to separate and dissolve their marriage. After this

suresh 908-WP-12242.2016.doc

document was executed, the petitioner married the deceased

Raghu Sakhru Roman on 21-9-2010. The said Phapale also

remarried. The petitioner claims that she resided with the

deceased till his demise. The ration card also demonstrates the

petitioner as wife of Raghu. Raghu also executed an affidavit

requesting the first respondent to insert the name of the

petitioner in the Service Record so as to enable the petitioner to

avail medical facilities. It is stated by Raghu, in the affidavit,

that the petitioner is his wife. Relying upon this affidavit and the

entries in the Medical Aid Registration Card of Mumbai Port

Trust, so also the proof of residence of the petitioner with

Raghu, it is claimed that upon demise of Raghu on 3-9-2011, the

petitioner is his only heir and legal representative. She is

entitled to pensionary benefits. Accordingly, an application was

made for payment of family pension. However, one

Dnayaneshwar Roman filed a complaint with respondent No.1

raising objection. That objection was based on the relationship

of the petitioner with the deceased. It is stated that by virtue of

this objection and the complaint therein that the petitioner is not

suresh 908-WP-12242.2016.doc

the legally wedded wife of the late Raghu, the respondents

stopped paying the pension with effect from 1-10-2013 and then

directed the petitioner to obtain appropriate directions and

orders from a Competent Court.

3. Since the respondents insisted on a Court's order, the

petitioner along with her ex-husband Zimesh Phapale filed

Marriage Petition No.373 of 2014 in the Court of Civil Judge,

Senior Division at Khed, District Pune. They invoked Section 13B

of the Hindu Marriage Act, 1955 claiming a decree of dissolution

of their marriage by mutual consent.

4. That petition was allowed on 23-3-2015. The

marriage came to be dissolved. It is stated that since the

marriage was not dissolved with effect from 14-12-2007 but the

date of the decree was reckoned as the date of dissolution, the

employer/respondents did not accept the stand of the petitioner

based on this Judgment and Decree. They insisted that the

marriage has to be dissolved from the date claimed by the

petitioner, namely, 14-12-2007. That is how she approached the

suresh 908-WP-12242.2016.doc

Competent Court and sought correction of the Judgment and

Decree. That has been granted.

5. After obtaining that declaration and the correction,

as aforesaid, the petitioner approached respondent No.2-Finance

Department which issued a communication dated 31-3-2016

that since the date of dissolution of the marriage is 23-3-2015,

she was not competent to marry the deceased. That is how once

again the petitioner was denied the pensionary benefits. The

petitioner tried to reason it out with the respondents by pointing

out that the date of marriage with the ex-husband is 27-5-2003.

That has been dissolved by a Competent Court and the Decree to

that effect is passed in 2015, but the marriage performed on that

date stands dissolved. It is, therefore, only a reinforcement of

the written Deed of Divorce executed between the petitioner and

her ex-husband. The respondents cannot question the same.

6. After having perused this writ petition and all the

annexures thereto, we do not think that in the given facts and

circumstances the respondents were justified in denying the

suresh 908-WP-12242.2016.doc

pension to the petitioner.

7. The petitioner pointed out that there was a

separation between her ex-husband and herself. That was

effective from 14-12-2007. The marriage was solemnised much

prior, namely, 27-5-2003. After the Deed of Divorce executed

and in writing between the parties, they have been residing

separately. Their marriage was dissolved by consent. There is no

question of that marriage being held to be subsisting,

particularly when both the petitioner and her ex-husband had

re-married. In the circumstances, the petitioner should not have

been called upon to obtain any clarification or further directions

or orders from the Court. Rather, in the given facts and

circumstances, it is for the complainant to prove that the

marriage was not dissolved or that during the subsistence of the

first marriage with the said Zimesh Phapale, the deceased

purportedly married her and which cannot be said to be a lawful

marriage. For that the complainant ought to go to a Competent

Court and claim appropriate declaration. Based on the record

and supplied by the petitioner including an order from the

suresh 908-WP-12242.2016.doc

Competent Court, it was not for the respondents to have stopped

the pension. Admittedly, they had been releasing it in favour of

the petitioner after the death of deceased Raghu. Raghu expired

on 3-9-2011. In such circumstances, we do not think that this

stand of the respondents accords with the mandate of Articles 14

and 16 of the Constitution of India. A public body and

particularly an authority within the meaning of Article 12 of the

Constitution of India should not have acted unfairly and unjustly

and denied the pensionary benefits to the petitioner.

8. As a result of the above discussion, we allow this

writ petition in terms of prayer clause (a). We direct that the

respondents shall continue to release the pensionary benefits to

the petitioner. It would be open for the complainant to work out

his remedies and in a Competent Court. All arrears and the

regular pension for the ensuing month shall be released in

favour of the petitioner as expeditiously as possible and within a

period of four weeks from the date of receipt of a copy of this

order. Rule is made absolute in the above terms.

suresh 908-WP-12242.2016.doc

9. All concerned to act upon an authenticated copy of

this order.

(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)