Madras High Court
R.Vasuki vs The Superintendent Of Police on 27 April, 2021
W.P(MD)No.7836 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.7836 of 2021
R.Vasuki ... Petitioner
vs.
The Superintendent of Police,
Sivagangai District,
Sivagangai. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, directing the respondent to sanction
family pension to the petitioner with effect from 07.06.1988 ie., the date
of death of her husband S.Rajeshwaran and disburse the arrears with
18% interest forthwith and continue to pay the same to the petitioner.
For Petitioner : Mr.M.Gururaj
For Respondent : Mr.C.Ramesh
Special Government Pleader
1/12
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W.P(MD)No.7836 of 2021
ORDER
This Writ Petition is filed seeking a Writ of Mandamus, directing the
respondent to sanction family pension to the petitioner with effect from
07.06.1988 ie., the date of death of her husband S.Rajeshwaran and
disburse the arrears with 18% interest forthwith and continue to pay the
same to the petitioner.
2.Heard the learned counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondents.
3.According to the petitioner, her husband-S.Rajeshwaran worked
as Inspector of Police in the respondent Department and while he was in
service, died on 07.06.1988. The said S.Rajeshwaran earlier married one
Rengammal and both got separated without any records, before the
family elders, as per the Customs. After that, he married the petitioner in
the year 1975 and from that year onwards, the petitioner and the
deceased employee were living together as husband and wife till his life
time and in the wedlock, two sons were born. The deceased employee
has nominated the petitioner to receive the service benefits. After the
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W.P(MD)No.7836 of 2021
death of her husband on 07.06.1988, the petitioner made a request
before the respondent for family pension to be paid to her. The first wife,
namely Rengammal, also made a claim for family pension and retirement
benefits of the deceased employee. The respondent directed both the
petitioner and the first wife-Rengammal to obtain a Legal Heirship
Certificate from the competent authority. The first wife-Rengammal died
on 31.12.2000. The petitioner filed a suit in O.S.No.251 of 2005, on the
file of the District Munsif Court, Uthamapalayam, for declaration that the
petitioner, the first wife children and her children are legal heirs of the
deceased employee-S.Rajeshwaran. By Judgment and decree, dated
12.12.2007, the District Munsif Court, Uthamapalayam, dismissed the
suit against the petitioner and declared the other plaintiffs as legal heirs
of the deceased employee-S.Rajeshwaran.
4.From the materials available on record, it is seen that the
petitioner was living with the deceased employee as wife from the year
1975 and in cohabitation, two male children were born. The two children
along with three children of the first wife were declared as legal heirs of
the deceased employee-S.Rajeshwaran.
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W.P(MD)No.7836 of 2021
5.The learned counsel appearing for the petitioner relied on the
order of this Court dated 23.01.2020, made in W.P.No.34952 of 2019
(C.Sarojini Devi Vs. the Director of Local Fund Audits and others). In the
said order, this Court, after considering the earlier order of this Court,
held that when two persons lived as husband and wife and had
cohabitation for a long time, she has to be presumed as a wife and not a
concubine. The ratio in the said order is squarely applicable to the facts
and circumstances of the present case and the relevant portion of the
said order reads as follows:-
“11. The only issue that requires consideration is whether
this long cohabitation will ennure to the benefit of the petitioner
and make her eligible to receive the Family Pension. To decide
this issue, the judgment that was cited by the learned counsel for
the petitioner becomes very relevant. This Court, in S.Suseela @
Mary Margaret Vs. The Superintendent of Police and another
made in WP.No.15806 of 2015 dated 18.06.2015, had dealt with
the similar issue. The relevant portions in the judgment is
extracted hereunder:-
“2.The husband of the petitioner one K.M.Stanley was
employed as a Head Constable in the Police Department.
While he was in service, he married one Suganthi on
06.06.1973 and out of the said wedlock, they have a female
child namely, Rooth Epsia. There were some difference of
opinion between K.M.Stanley and Suganthi and they lived
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W.P(MD)No.7836 of 2021
separately from 1975 onwards. While so, K.M.Stanley
married the petitioner herein on 23.06.1976, when the first
marriage with Suganthi was subsisting. Out of the wedlock,
one male child namely, Nakeeran was born and he is now
aged around 35 years.
3.The first wife namely Suganthi approached the
learned Principal District Judge, Erode, by filing IDOP No.25
of 2001 seeking dissolution of marriage and the District
Judge allowed the said petition on 05.11.2003 and the
marriage between K.M.Stanley and Suganthi was dissolved.
Furthermore, the said Suganthi died on 02.12.2005.
4.While so, K.M.Stanley retired from service on
31.07.2001. After retirement, he has drawn pension and he
died on 28.10.2011. During his life time, K.M.Stanley gave
a representation dated 26.06.2007 to the first respondent
to include the name of the petitioner herein as his nominee
for the purpose of getting family pension.
5.The first respondent sent a proposal dated
04.09.2014 to the second respondent to sanction family
pension to the petitioner recognizing that the petitioner is
the wife of the deceased Government servant. But, the
second respondent passed the impugned order dated
13.02.2015, rejecting the proposal stating that since, the
marriage between the deceased Government servant and
the petitioner herein took place on 23.06.1976, when the
marriage between the deceased Government servant and
his first wife namely Suganthi was in subsistence, the
petitioner herein is not eligible for family pension.
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W.P(MD)No.7836 of 2021
6.The petitioner has now filed this writ petition
seeking to quash the impugned proceedings of the second
respondent in No.Pen.33/2/pt 11155/FP/14-15 dated
13.02.2015 and to direct the second respondent to accord
sanction for grant of family pension to her.
10.At this juncture, the learned counsel for the
petitioner placed reliance on a judgment of the Hon'ble
Supreme Court in Dhannulal and others v. Ganeshram and
another (ILC-2015-SC-civil), wherein in paragraph Nos.14
and 15, it has been held as follows:-
“14.In the case of Gokal Chand vs. Parvin Kumari,
AIR 1952 SC 231, this Court observed that continuous co-
habitation of woman as husband and wife and their
treatment as such for a number of years may raise the
presumption of marriage, but the presumption which may
be drawn from long cohabitation is rebuttable and if there
are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.
15.It is well settled that the law presumes in favour
of marriage and against concubinage, when a man and
woman have cohabited continuously for a long time.
However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party,
who seeks to deprive the relationship of legal origin. In the
instant case, instead of adducing unimpeachable evidence
by the plaintiff, a plea was taken that the defendant has
failed to prove the fact that phoolbasa Bai was the legally
married wife of Chahatrapati. The High Court, therefore,
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W.P(MD)No.7836 of 2021
came to a correct conclusive by recording a finding that
Phoolbasa Bai was the legally married wife of Chhatrapati.”
11.In these circumstances, the first respondent
thought it fit to send proposal for family pension to the
petitioner. However, the second respondent by way of the
impugned order rejected the same.
12.In view of the aforesaid facts, the second
respondent was not correct in rejecting the proposal for
family pension to the petitioner on the sole ground that
when the petitioner married the deceased Government
servant, the marriage between the Government servant and
his first wife was subsisting.
13.In view of all the above, I am of the view that the
second respondent while passing the impugned order failed
to take into account the entire facts of the case,
particularly, the dissolution of marriage between the
deceased Government servant and his first wife in the year
2003; the death of the first wife of the deceased
Government servant in the year 2005 and the continuous
living together of the deceased Government servant with
the petitioner from 1976 till the death of the deceased
Government servant in the year 2011. Hence, the first
respondent has rightly thought it fit to send proposal for
family pension to the petitioner. If it is so, I am of the view
that the second respondent is not correct in rejecting the
proposal for family pension. It is now accepted that without
the formal marriage, living together relationship has
conferred every right for the parties aggrieved to claim for
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W.P(MD)No.7836 of 2021
their legal rights. In the aforesaid facts and circumstances
of the case, the order passed by the second respondent is
liable to be interfered with.”
12. Even in the above judgment, the petitioner therein had
married the Government Employee during the subsistence of the
first marriage. The only difference is that in that case, the first
marriage got dissolved in the year 2003 and the first wife died in
the year 2005. This Court took into consideration the judgment of
the Hon'ble Supreme Court in Dhannulal's case. The Hon'ble
Supreme Court, in the said case has held that Law presumes in
favour of marriage and against concubinage, when a man and
woman have co-habitated continuously for a long time. By relying
upon this judgment, this Court held that after the dissolution of
marriage with the first wife and after her death, the petitioner
therein was living with the deceased Government servant till his
death. This was taken into consideration by this Court and this
Court held that the petitioner therein must be considered to be the
wife of the deceased Government servant atleast after the
dissolution of the first marriage and the subsequent death of the
first wife.
13. This Court is in complete agreement with the
proposition of law that has been enunciated in the above
judgment. It is very easy to brand the petitioner as a concubine
and deprive her of her livelihood. However, the fact remains that
the petitioner lived with the deceased Dr.A.Chinnasamy from the
year 1975 up to his death in the year 2009. This means that she
lived with him for nearly 34 years. The petitioner also gave birth
to three children. If the petitioner had made this claim when the
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W.P(MD)No.7836 of 2021
first wife is alive, then obviously the petitioner will not be entitled
for Family Pension, since her relationship is not recognized by
law.”
6.Further, the deceased employee-S.Rajeshwaran has nominated
the petitioner to receive all the terminal benefits. The employee died on
07.06.1988, but the first wife alive till 31.12.2000. The first wife was not
divorced by the deceased employee as per law. In view of the same, the
first wife is entitled to Family Pension from 1988 to 2000. The petitioner,
in view of the long cohabitation with the deceased employee from the
year 1975 evidenced by the birth of two male children and the deceased
employee nominated the petitioner to receive the terminal benefits, is
entitled to receive the Family Pension from 01.01.2001, after the death
of the first wife of the deceased employee.
7.The learned Special Government Pleader appearing for the
respondent submitted that the respondent paid DCRG equally to five
children of the deceased employee and also arrears of Family Pension
payable to the first wife, by proceedings, dated 14.08.2009.
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W.P(MD)No.7836 of 2021
8.In view of the above, the petitioner is entitled to Family Pension
from 01.01.2001, after the death of the first wife of the deceased
employee. The respondent is directed to disburse arrears of Family
Pension along with interest at the rate of 6% p.a., to the petitioner from
01.01.2001 and continue to pay Family Pension every month.
9.With the above directions, the Writ Petition is disposed of. No
costs.
27.04.2021
Index : Yes / No
Internet : Yes / No
ps
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W.P(MD)No.7836 of 2021
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for official
purposes, but, ensuring that
the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
To
The Superintendent of Police,
Sivagangai District,
Sivagangai.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.7836 of 2021
V.M.VELUMANI,J.
ps
W.P(MD)No.7836 of 2021
27.04.2021
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