She Was Dependent Upon Her Father On Account Of Her Husband's Desertion: Calcutta High Court Upholds Grant Of Family Pension To Daughter

The High Court was considering a writ petition filed against the judgment of the Central Administrative Tribunal, Kolkata Bench, Kolkata, passing a direction to grant family pension to the original applicant (respondent).

The Division Bench of Acting Chief Justice Sujoy Paul and Justice Partha Sarathi Sen held, “We are also satisfied that the original applicant before the said tribunal as well as before us is also successful in establishing that at the time of death of her father (pensioner) she was very much dependent upon him on account of desertion of her husband as has been established before a competent court of law, which passed the decree of divorce in favour of the original applicant, noticing candid admission of the husband of the original applicant.”

Senior Advocate D.N. Ray represented the Petitioner while Advocate Asim Kr. Niyogi represented the Respondent.

Factual Background

The original applicant’s father was an employee in the South Eastern Railway who retired from service on December 31, 1983. The original applicant’s mother died on November 5, 2011. The pensioner died in 2013, and the marriage of the original applicant was solemnised in the year 1991. The original applicant’s husband filed a suit for dissolution of marriage in 1997. The said suit for dissolution of marriage was, however, stayed on account of non-payment of maintenance to the original applicant by her husband.

The original applicant filed another suit for dissolution of marriage against her husband in the year 2014 on the grounds of desertion. The second suit for dissolution of marriage was decreed in 2016. The Authority, while considering the representation of the original applicant, came to a finding that since the suit for divorce at the instance of the original applicant was filed much after the death of her parents, the original applicant cannot be considered as dependent upon her parents and on such score, such representation of the original applicant was not considered favourably.

Arguments

It was the case of the respondent authorities that the tribunal was not justified in passing the impugned order inasmuch as the tribunal had failed to visualise that the pensioner, who is the father of the original applicant,t died on April 19, 2013 and his spouse, who is the mother of the original applicant, pre-deceased her husband on November 5, 2011. It was further submitted that the original applicant (respondent) filed her suit for divorce against her husband, much after the death of her father as well as of her mother.

The respondent submitted that the jurisdictional trial court, while granting divorce to the original applicant in the subsequent matrimonial suit, came to a finding that the original applicant was deserted by her husband since December 15, 1995, in view of the candid admission of her husband as had been recorded by the said Court in the course of deposition.

Reasoning

The Bench noticed that before the said tribunal, the original applicant had furnished sufficient documents that she was deserted by her husband on or before 1996, and since then, she was compelled to reside at her paternal home with her father, and she had no independent income of her own.

As per the Bench, the writ petitioner authority had failed to visualise that the husband of the original applicant filed a suit for dissolution of marriage against her wife (the original applicant) during the lifetime of her father, which, however, remained stayed on account of nonpayment of maintenance by the husband. Subsequently, the marriage between the original applicant and her husband was dissolved by a decree of divorce in 2016 in a suit for dissolution of marriage as initiated by the original applicant/wife.

“It thus appears to us that the original applicant is successful in establishing that her claim for family pension comes under the purview of the said OM dated 19.07.2017. It further appears to us that the writ petition No. 3 authority by passing the reasoned order dated 26.05.2022 interpreted the said OM dated 19.07.2016 in a narrow periphery overlooking its beneficial object”, it added.

Reaffirming that sitting in writ jurisdiction, the Court is not supposed to act like an appellate court and thus cannot substitute our view simply because another view is possible, the Bench refused to interfere with the order impugned and dismissed the petition.

Cause Title: The Union of India v. Mita Saha Karmakar (Case No.: WP.CT 36 OF 2025)

Appearance

Petitioner: Senior Advocate D.N. Ray, Advocate Moumita Mondal

Respondent: Advocates Asim Kr. Niyogi, Vaskar Pal

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