understand from the meaning of the term in its ordinary sense, whose
husband is dead and who has not married again. A man is husband of
a woman only as long as there is no snapping of matrimonial relations
by a divorce a vinculo or dissolution of marriage or death.
In the case of Smt. Rambai Vs. Ramesh Kumar reported at
AIR 1996 M.P. 144 cited before me by learned Counsel for the
appellants, the meaning assigned to the word 'widow' in 'Words and
Phrases” Permanent Edition, Vol.45 page 141 has been approved by
the learned Single Judge of Madhya Pradesh High Court. The learned
Judge has held that, “Where husband and wife are divorced a vinculo,
the wife after the husband's death is not his 'widow' ....” The relevant
observations of the learned Judge are to be found in paragraph 12 and
same are reproduced thus;
“.......In 'Words and Phrases” Permanent Edition, Vol.45
page 141 under the heading 'divorced wife', the word
'widow' means a woman who has lost her husband by
death and has no application to a divorced woman.
Where husband and wife are divorced a vinculo, the wife
after the husband's death is not his 'widow' and entitled
to dower..”
In view of the above, the argument of learned Counsel for
the respondent that respondent is a widow and dependant of the
deceased cannot be accepted and argument of learned Counsel for the
appellants in this regard needs to be upheld. I, therefore, find that in
the instant case, for the purpose of enquiry under the Act, 1923, the
respondent cannot be said to be enjoying the status of widow of
deceased Kishore. Once we find that so far as the enquiry under the
Act, 1923 is concerned, the respondent was not the widow of deceased
Kishore, she would be out of the scope and ambit of the definition of
the term, 'dependent' as given in Section 2(1)(d) of the Workmen's
Compensation Act, 1923, which describes, inter alia, a widow of a
deceased workman as his dependant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 544 OF 2013
Smt. Varsha Kishore Tode Vs Smt. Vandana Kishore Tode
Citation; 2014(4) MHLJ 206 Bom
CORAM : S. B. SHUKRE, J.
DATED : JANUARY 09, 2014.
1. This appeal is directed against the order passed on
08/11/2011 in D.W.C.A. No.12/2009 filed under Section 8(4) of
Workmen's Compensation Act, 1923 (for short, “the Act, 1923”) by the
Commissioner appointed under the Act, 1923 at Chandrapur and also
the order passed on 20/9/2012 by the same Commissioner refusing to
revise or modify the order dated 08/11/2011.
2. The case under the Act, 1923 arose because of death of
Kishore Tode, who was at the time of his death, working as Senior
Overman with Western Coal Fields, Sasti, Tahsil Ballarpur, District
Chandrapur. It so happened that when he was performing his duty on
04/6/2009, a heap of sand collapsed and he got buried thereunder.
He remained buried for a considerable period of time and it was only
on 12/6/2009, his body could be recovered. He was, of course, found
dead at that time. Since the accidental death occurred during the
course of employment, the employer deposited an amount of
`3,51,080/with
the Commissioner as compensation payable under the
Act, 1923 by accepting the liability of the employer therefor. The
appellants herein, while appellant No.1 is widow and appellants No. 2
to 4 are children, being legal heirs and dependents of deceased Kishore
Tode, filed an application under Section 8(4) of the Act, 1923 for
distribution of the compensation amount. It was stated by the
appellants that the respondent was the first wife of the deceased, but
was divorced by the deceased on 22/5/1996 as per the usages and
customs applicable to the Buddhist religion of which the parties herein
are the followers. It was also submitted by the appellants that
respondent Vandana had been staying separately from the deceased
since 1996 till his death for a period of 14 years and with such long
separation also, the sanctity of the relationship of husband and wife in
between the respondent and deceased Kishore had come to an end.
Appellant No.1 had performed marriage with deceased Kishore on
16/11/1997 as per the usages and customs applicable to the followers
of Buddhist religion. Appellants No.2 to 4 are the children born out of
this wedlock. The appellants submitted that they being the only
dependents of the deceased Kishore, they were entitled to receive the
compensation in its entirety.
3. After making an enquiry and hearing both the sides, learned
Commissioner found that the appellants, being widow and children of
the deceased Kishore respectively and the respondent being widow of
deceased Kishore, were entitled to receive the amount of compensation
and accordingly divided equally the compensation amount in two parts
and directed payment of one portion to the appellants jointly and the
remaining part to the respondent alone.
4. Since the appellants were not satisfied with this order, they
moved an application under Section 8(8) of the Act, 1923 for variation
of distribution order passed on 08/11/2011 before learned
Commissioner, Chandrapur. However, learned Commissioner did not
find any substance therein and noting that there being no change of
circumstance or any fraudulent circumstance being present on record,
he could not modify the distribution order and accordingly rejected the
application. Aggrieved by these orders, the appellants are before this
Court in this appeal.
5. On 13/11/2013, this Court had passed an order to the
effect that the appeal shall be heard finally at the admission stage itself
on the next date. In pursuance of this order, this appeal has been
heard. During the course of hearing, it has been found that the appeal
involves a substantial question of law and, therefore, deserves to be
admitted. Accordingly, the appeal stands admitted on the following
substantial question of law.:
“Whether a divorced wife is a widow and hence
dependent of the husband at the time of his death,
within the meaning of Section 2(1)(d) of the
Workmen's Compensation Act, 1923?
6. I have heard Shri Khajanchi, learned Advocate for the
appellant and Shri Isaac, learned Counsel who has waived notice for
the respondent, on the substantial question of law as framed above.
With their assistance, I have gone through the memo of appeal and
the paper book including the copies of the impugned orders.
7. In this case, it was the specific averment of the appellants
that appellant No.1 was the second wife of deceased Kishore and
respondent was the first wife of the deceased, who had been divorced
by the deceased in the year 1996, prior to the marriage between
deceased Kishore and appellant No.1. The appellants had claimed, as
seen from their application filed under Section 8(4) of the Act, 1923,
that deceased Kishore had divorced the first wifethe
respondent on
22/5/1996 by mutual consent in accordance with the usages and
customs of Buddhist religion of which they were the followers. No
reply to this application had been filed by the respondent. She did not
deny any of these averments. Appellant No.1 had examined herself as
witness on behalf of the appellants before the Commissioner,
Chandrapur. During the course of her evidence, documents were
produced by her and they were proved by her and accordingly
exhibited by the Commissioner. One of the documents produced by
her is an affidavit sworn by deceased Kishore at Exh.32 and this
affidavit supports the contention of the appellants that respondent,
though first wife of the deceased, had been divorced by the deceased
and after the divorce, the deceased had performed marriage with
appellant No.1. No contest to this evidence has been made by the
respondent.
8. Learned Counsel for the appellants submits that in fact,
respondent had declined to crossexamine
appellant No.1. In such
circumstances, it has to be accepted, at least for the purposes of the
proceedings filed under the Act, 1923, which are summary in nature
and which are not carried on strictly in accordance with the provisions
of the Code of Civil Procedure and the Evidence Act, that respondent,
at the time of death of Kishore, was having a status of divorced wife
and not as the wife of Kishore. It would then follow that she could not
be termed as 'Widow' of deceased Kishore. A widow is a woman, as we
understand from the meaning of the term in its ordinary sense, whose
husband is dead and who has not married again. A man is husband of
a woman only as long as there is no snapping of matrimonial relations
by a divorce a vinculo or dissolution of marriage or death.
9. In the case of Smt. Rambai Vs. Ramesh Kumar reported at
AIR 1996 M.P. 144 cited before me by learned Counsel for the
appellants, the meaning assigned to the word 'widow' in 'Words and
Phrases” Permanent Edition, Vol.45 page 141 has been approved by
the learned Single Judge of Madhya Pradesh High Court. The learned
Judge has held that, “Where husband and wife are divorced a vinculo,
the wife after the husband's death is not his 'widow' ....” The relevant
observations of the learned Judge are to be found in paragraph 12 and
same are reproduced thus;
“.......In 'Words and Phrases” Permanent Edition, Vol.45
page 141 under the heading 'divorced wife', the word
'widow' means a woman who has lost her husband by
death and has no application to a divorced woman.
Where husband and wife are divorced a vinculo, the wife
after the husband's death is not his 'widow' and entitled
to dower..”
10. In view of the above, the argument of learned Counsel for
the respondent that respondent is a widow and dependant of the
deceased cannot be accepted and argument of learned Counsel for the
appellants in this regard needs to be upheld. I, therefore, find that in
the instant case, for the purpose of enquiry under the Act, 1923, the
respondent cannot be said to be enjoying the status of widow of
deceased Kishore. Once we find that so far as the enquiry under the
Act, 1923 is concerned, the respondent was not the widow of deceased
Kishore, she would be out of the scope and ambit of the definition of
the term, 'dependent' as given in Section 2(1)(d) of the Workmen's
Compensation Act, 1923, which describes, inter alia, a widow of a
deceased workman as his dependant.
11. Learned Commissioner in his first impugned order has
found that the respondent, being widow of deceased Kishore, was
entitled to receive 50% of the compensation amount. However, he has
not assigned any reason as to how the respondent could be given the
status of a widow in the instant case. I have already discussed earlier
in details as to how the respondent cannot be termed as a widow in
this case and as such the first impugned order passed by learned
Commissioner, Chandrapur cannot be sustained in law. It would then
follow that the subsequent order refusing to revise the first order can
also be not upheld. The substantial question of law is thus answered
accordingly.
12. In the circumstances, I find that both the impugned orders
deserve to be quashed and set aside to the extent they grant 50% of
the compensation amount to be distributed to the respondent and I do
so.
The appeal is allowed and it is directed that the entire
amount of the compensation shall be equally distributed amongst all
the appellants.
In the circumstances of the case, there shall be no order as
to costs.
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