Madras High Court
S.Kumarammal vs The Accountant General on 24 February, 2021
W.P.No.27317 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.No.27317 of 2016
and
W.M.P.No.23513 of 2016
S.Kumarammal ... Petitioner
Vs
The Accountant General
Office of the Accountant General (A& E)
Tamilnadu, 361, Anna Salai,
Teynampet, Chennai - 18. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, calling for the proceedings of the
respondent in its Pen 32/1/PT.12014/15-16 dated 31.03.2016 and quash the
same and consequently direct the respondent to continue to grant family
pension to the petitioner in light of the judgement passed by this Hon'ble
Court in W.P.No.15806/2016 dated 18.6.2015 and W.P.No.12105/2016
dated 31.3.2016.
For Petitioner : Mr.L.Chandrakumar
For Respondent : Mr.V.Vijaya Shankar
1/11
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W.P.No.27317 of 2016
ORDER
The relief sought for in this writ petition is to call for the proceedings
of the respondent in its Pen 32/1/PT.12014/15-16 dated 31.03.2016 and
quash the same and consequently direct the respondent to pay family
pension to the petitioner in light of the judgement passed by this Court in
W.P.No.15806/2016 dated 18.06.2015 and W.P.No.12105/2016 dated
31.03.2016.
2.According to the petitioner, in the year 1962, she married to one
V.Sreenivasan, who was employed in the forest department. After several
years of marriage, she came to know about the first marriage between her
husband and one Thirumalaammal, who died on 1972, due to illness,
leaving behind her three sons and two daughters. Her husband took care of
the children born through the first wife along with the petitioner's children.
On 31.07.1996, the petitioner's husband retired from service on attaining the
age of superannuation and he died on 15.08.1996. Thereafter, the petitioner
was granted family pension, however, it was stopped from March 1997
onwards. She made a representation dated 16.12.2015 to the respondent in
this regard, but the same was not considered till date. Hence, this writ
petition.
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W.P.No.27317 of 2016
3.Upon notice, the respondent filed a detailed counter affidavit,
wherein it is inter alia stated that since the petitioner got married to
V.Sreenivasan in the year 1962 during the subsistence of his first marriage
with Thirumalammal, who expired on 17.04.1973, she has been identified as
the 2nd wife and she is not entitled to family pension as per the Tamil Nadu
Pension Rules.
4.Today, when the matter was taken up for consideration, the learned
counsel for the petitioner submitted that the issue involved herein is covered
by the order dated 23.01.2020 passed in W.P.No.34952 of 2019, wherein,
after detailed analysis, it was observed that this Court has to necessarily lean
towards the presumption of marriage rather than branding the petitioner as a
concubine; and this will be the most appropriate way to deal with the facts
of the present case, if justice has to be done to the petitioner. For better
appreciation, the relevant passage of the said order is extracted hereunder:
"11. The only issue that requires consideration is whether
this long co-habitation will enure 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 @
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W.P.No.27317 of 2016
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 portion 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 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
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W.P.No.27317 of 2016
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.
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 co-habitation 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
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W.P.No.27317 of 2016
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,
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
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W.P.No.27317 of 2016
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 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
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W.P.No.27317 of 2016
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 first wife is alive, then obviously
the petitioner will not be entitled for Family Pension, since her
relationship is not recognized by law.
14.The march of law happens only while considering
the co-habitation that continues after the death of the first
wife. That is the most crucial factor that was taken into
consideration by this Court while granting the Family Pension
to the petitioner in the case cited supra. Even in the present
case, the first wife died on 02.04.1997. Thereafter, the
petitioner lived with the deceased Dr.A.Chinnasamy till his
death on 20.01.2009. During this period, it can always be
construed that the petitioner and the deceased
Dr.A.Chinnasamy were living as husband and wife and their
long co-habitation itself raises that presumption of marriage.
Added to that the deceased Dr.A.Chinnasamy had also
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W.P.No.27317 of 2016
nominated the petitioner on 11.05.1999 to receive the Family
Pension after his death.
15...
16.In view of the above discussion, this Court has no
hesitation to quash the impugned order passed by the first
respondent on 01.02.2016 and accordingly, the same is
quashed. The first respondent is directed to pass necessary
orders and sanction Family Pension to the petitioner with
effect from the date of death of Dr.A.Chinnasamy i.e., from
20.01.2009 and disburse the arrears of pension to the
petitioner, within a period of twelve (12) weeks from the date
of receipt of a copy of this order. The petitioner shall be
continued to be paid with the Family Pension till her life time.
17.This writ petition is accordingly, allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.”
In the light of the said order, the learned counsel prayed for appropriate
direction to the respondent in favour of the petitioner, for which the learned
counsel for the respondent has no serious objection.
5.Considering the facts and circumstances of the case, more
particularly, that the first wife is no more and after her death, the deceased
employee had lived with the petitioner till his death, and having regard to
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W.P.No.27317 of 2016
the submissions made by the learned counsel on either side and also
following the aforesaid order, this Court finds it appropriate to quash the
order impugned herein. Accordingly, the impugned order dated 31.03.2016
passed by the respondent is quashed. The matter is remanded back to the
respondent for considering the claim of the petitioner seeking family
pension, afresh and disbursing family pension along with arrears, within a
period of eight (8) weeks from the date of receipt of a copy of this order.
6.This writ petition is allowed on the aforesaid terms. No costs.
Consequently, connected miscellaneous petition is closed.
24.02.2021
Index : Yes/No
Internet : Yes/No
mtl
To
The Accountant General
Office of the Accountant General (A& E)
Tamilnadu, 361, Anna Salai,
Teynampet, Chennai - 18.
https://www.mhc.tn.gov.in/judis/
W.P.No.27317 of 2016
R.MAHADEVAN, J.
mtl
W.P.No.27317 of 2016
24.02.2021
https://www.mhc.tn.gov.in/judis/
