TAPABRATA CHAKRABORTY J. - (1.) Challenge in the instant writ petition is against a judgment dated 8th April, 2016 passed by the learned Tribunal in OA 350/00081/2016.
(2.) As a prelude to the instant lis, it needs to be stated that the deceased employee, namely, Pintu Ghanti (hereinafter referred to as Pintu), was a Cabinman under the Eastern Railways and he died in harness on 17th September, 2014. Pintu married one Susmita Bhowmick (hereinafter referred to as Susmita), who subsequently deserted him and married one Nishit Sasmal and gave birth to a male child. In the midst thereof, Pintu married Sumana Ghanti (hereinafter referred to as Sumana) on 5th July, 2011 and such marriage was registered on 22nd November, 2011 and from such relationship one son, namely, Mayukh was born on 5th May, 2012. Prior to his death in harness, Pintu submitted a family declaration to the authorities incorporating the name of Sumana as his wife. Sumana thereafter made representations to the petitioners herein praying for disbursement of the death - cum -retirement benefits of Pintu. Thereafter the petitioner no.3 issued a memorandum dated 18th September, 2015 stating, inter alia, that in the absence of a valid divorce between Pintu and Susmita, the marriage of Pitnu with Sumana was a void marriage and that only 50% of the pensionary benefits pertaining to the service of Pintu would be made available to the minor son of Sumana. Subsequent thereto, at the instance of the Pension Adalat, Eastern Railways, the petitioners released 50% of the death -cum -retirement benefits of Pintu. Challenging the memorandum dated 18th September, 2015 and claiming disbursement of the entire pensionary benefits, Sumana preferred OA 350/00081/2016 and the same was disposed of by the judgment dated 8th April, 2016 directing the petitioners herein "to disburse the DCRG and family pension to the applicant and other legal heirs of the deceased in accordance with the law, w.e.f. the date the same was due within two months from the date of receipt of a copy of this order. Since the dues were withheld without any valid reason the same should be visited with a penalty of interest @ 8% per annum on the dues, to be calculated from the date the dues become payable". Aggrieved by the said judgment, the railway authorities have approached this Court.
(3.) 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 Hindu Marriage Act of 1955 (hereinafter referred to as the said Act of 1955) and arrived at a finding that Sumana, in spite of being the second wife of Pintu, 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 male 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.;