ENTITLEMENT OF DIVORCED WIFE ON COMPENSATION UNDER WORKMEN COMPENSATION ACT, 1923

[Mr. M. GOVINDARAJAN]

Under the Workmen Compensation Act, 1923 the employer is liable to pay compensation if an employee meets an accident and meets the death in the course of him employment.  On the death of the employee the employer has to pay the compensation before the Commissioner for Workmen Compensation act that he accepts as liability. An application may be filed by the legal heirs of the employee for getting proper compensation from the employer in the prescribed proforma within the limitation period. The Commissioner, after hearing both the employer and the legal heirs of the employee will decide the compensation amount and distribute the same to the legal heirs of the deceased employee. It I s common to see disputes arise in getting the compensation by the legal heirs. The dispute may be the employee may have more than one wife. In such case the Commissioner is to decide the case according the facts and circumstances of the case and based on the proper evidence.

In this article the issue taken for discussion is whether the divorced employee would amount to an independent of the deceased employee in the capacity of widow with reference to decided case laws.

In ‘Smt. Ram Bai V. Ramesh Kumar’ – AIR 1996 MP 144, [1995 (7) TMI 421 - MADHYA PRADESH HIGH COURT]it was held that 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 ‘Varsha Kishore Tode V. Vandana Kishore Tode’ – 2014 (9) TMI 39 - Bombay High Court the case arose because of death of Kishore Tode, who was at the time of his death, working as Senior Over man with Western Coal Fields, Sasti, Tehsil Ballarpur, District Chandrapur. He died while he was performing his duty on 04.06.2009 a heap of sand collapsed and he got buried there under. He remained buried for a considerable period of time and it was only on 12.06.2009 his was could be recovered. He was, of course, found dead at that time.  Since the accidence 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 by accepting the liability.  The appellants, who are the widow of the deceased employee and children of him, filed a claim of compensation under Section 8(4) of the Act.  The appellants submitted the following before the Commissioner:

• The respondent was the first wife of the deceased employee but was divorced by the deceased on 22.05.1996 as per the usages and customs applicable to the Buddhist religion of which the parties herein are the followers;
• The 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 Tode had come to an end;
• The appellant had performed marriage with deceased Kishore on 16.11.1997 as per the usages and customs applicable to the followers of Buddhist religion;
• Appellants 2 to 4 are the children born out of this wedlock;
• The appellants became the only dependents of the deceased Kishore they were entitled to receive the compensation in its entirety.

The appellant No.1 had examined herself as witness on behalf of the appellants before the Commissioner. The respondent had declined to cross examine the appellant No. 1.  During the course of her evidence documents were produced by her and they were proved by her. One of the documents produced by her is an affidavit sworn by the deceased Kishore  and the affidavit supports the contention of the appellants that respondent, though first wife of the deceased, has been divorced by the deceased and after the divorce, the deceased had performed marriage with appellant No. 1. No contest has been made by the respondent to this evidence.

The Commissioner found that the appellants, being widow and children of the deceased Kishore respectively and the respondent being the 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.

Since the appellants were not satisfied with this order they moved an application under Section 8(8) of the Act for variation of distribution order passed by the Commissioner. However the 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 rejected the application.

Aggrieved against this order the appellants filed appeal before the High Court.  The High Court found that the appeal involves a substantial question of law and framed 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?”

 No reply to this application has been filed by the respondent. She did not deny any of these averments. The High Court held that in such circumstances, it has to be accepted, at least for the purposes of the proceedings filed under the Act which are summary in nature and which are not carried on strictly in accordance with the provisions of Civil Procedure Code and the Evidence Act that the 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 women,  as understood from the meaning of the term in its ordinary sense, whose husband is dead and who has not married again.  A man is a 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.

The High Court held that the arguments of the respondents that  she is a widow of the deceased and dependent  cannot be accepted . She would be out of the scope 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 dependent.  The High Court held 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 respondent No. 1.  The High Court directed to distribute the entire amount to the appellants.